Law of agency [3rd edition.] 9780409334814, 0409334812

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Law of Agency Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Law of Agency Third Edition

Law of Agency

G E Dal Pont Professor, Faculty of Law, University of Tasmania  

   

LexisNexis Butterworths Australia 2014

Page 2 of 3 Law of Agency

 

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National Library of Australia Cataloguing-in-Publication entry Author:

Dal Pont, G E (Gino Evan).

Title:

Law of Agency.

Edition:

3rd edition.

ISBN:

9780409334807 (pbk). 9780409334814 (ebk).

Notes:

Includes index.

Subjects:

Agency (Law) — Australia.

Dewey Number:

346.94029.

© 2014 Reed International Books Australia Pty Limited trading as LexisNexis. First edition 2001; reprinted 2002; Second edition 2008. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission Inquiries should be addressed to the publishers. Typeset in Goudy. Printed in China. Visit LexisNexis Butterworths at www.lexisnexis.com.au

End of Document

Copyright Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Law of Agency Third Edition

Copyright © 2014 Reed International Books Australia Pty Limited trading as LexisNexis. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission

End of Document

Disclaimer Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Law of Agency Third Edition

Disclaimer Law of Agency Third Edition has been written, edited and published and is sold on the basis that all parties involved in the publication exclude any liability, including negligence or defamation, for all or any damages or liability in respect of or arising out of use, reliance or otherwise of this book. The book should not be resorted to as a substitute for professional research or advice for any purpose.

End of Document

Currency Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Currency

Currency The content of this book is current to the date of publication — September 2013. The references to the legislation within this book are current to that date. The content of this book will be updated with the release of any new edition. As an enhancement to this book, links have been provided to any legislation that is reproduced within our looseleaf publications. The legislation within the looseleaf publications is updated on an ongoing basis. Historical notes are provided within the legislation to indicate the last date any amendments were made.

End of Document

[Commentary] Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Dedication Like the first and second editions of this book, this third edition is dedicated to my mother Emma Angela DAL PONT who passed away on the evening of Good Friday, 2001 shortly before the first edition of this book was published Sapeva poco della legge ma conosceva molto delle cose piú importanti

End of Document

Contents Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Contents

Contents Preface

vii

Table of Cases

ix

Table of Statutes

lix

Abbreviations Part I

lxxvii

Context

1

Chapter 1

Definition

Chapter 2

Agency Compared with Other Legal Relationships

41

Chapter 3

Capacity

61

Creation of Agency

79

Part II

3

Chapter 4

Agency Created by Agreement

Chapter 5

Agency by Ratification

101

Chapter 6

Agency Arising by Operation of Law

135

Part III

Agent's Authority

81

145

Chapter 7

Express Authority

147

Chapter 8

Implied Authority

165

Chapter 9

Non-delegation

189

Part IV

Agent's Duties

201

Chapter 10

Sources and Incidents of Duties

203

Chapter 11

Duties of Performance

221

Chapter 12

Duties in Equity

253

Page 2 of 2 Contents Chapter 13

Accountability of Agents

293

Chapter 14

Secret Commissions Legislation

309

Part V

Agent's Rights

321

Chapter 15

Agent's Remuneration — Contractual Connection

323

Chapter 16

Agent's Remuneration — Causal Connection

367

Chapter 17

Agent's Remuneration — Statutory Requirements

384

Chapter 18

Other Agent's Rights

403

Part VI

Principal's Relationship with Third Parties

423

Chapter 19

Principal's Rights and Liabilities in Contract

425

Chapter 20

Ostensible Authority

455

Chapter 21

Agency and Ostensible Ownership

508

Chapter 22

Principal's Liability Outside of Contract

528

Part VII

Agent's Relationship with Third Parties

573

Chapter 23

Agent's Relationships in Contract with Third Parties

575

Chapter 24

Agent's Liability to Third Parties Outside Contract

630

Part VIII

Termination of Agency

653

Chapter 25

Termination of Agency

655

Chapter 26

Revocation of Powers of Attorney

675

Index

End of Document

683

Preface Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Preface

Preface Five years have spanned the second and third editions of this book, which remains the only substantial Australian text on the law of agency. In the modern fluid legal environment, the passage of five years justifies a new edition of a book simply to keep up with developments, curial, statutory and academic. This third edition, in line with the first two editions, aims to convey to the reader the principles surrounding agency law from an Australian perspective. But in so doing it refers extensively, not only to relevant Australian case law and statutory provisions, but contextualises these by reference to legal developments in the main common law jurisdictions (namely the United Kingdom, the United States, Canada and New Zealand, as well as some mention of Hong Kong and Singaporean case law).In addition to cataloguing the relevant principles, the book provides commentary and analysis on areas of uncertainty and dispute, and to this end makes regular reference to the academic commentary in the field. The leading common law work on agency, now in its nineteenth edition under the stewardship of Professor Watts, makes a frequent appearance in the notes in acknowledgement of the scholarship underscoring it. Another frequent visitor to the notes remains the seventh edition of Professor Fridman's work (in preference to his, briefer, more recent work, which exhibits a distinctly Canadian focus). Joining the chorus of substantial agency works for this edition is a new book, authored by Professor Tan, from a Singaporean perspective. Published too late to make it into this edition is a dedicated Scottish work on the law of agency. This expansion in agency scholarship in book form is to be welcomed. As is always the case, a temporal line must be drawn to ensure that the book is published on time and with the minimum of amendment at page proof stage. This has meant that several recent case authorities could not be included in the text or notes. Cases that deserve mention in this regard include: •

Re Southern Pacific Personal Loans Ltd (on the status of a liquidator as agent: see 1.47);

•

Correa v Whittingham (addressing the statutory assumptions found in the Corporations Act 2001 (Cth) ss 128, 129: see generally 20.74–20.84);

•

Lloyd v Borg (on the application of the principle in Soblusky v Egan: see 22.40); and

•

Bilta (UK) Ltd (in liq) v Nazir (No 2) (dealing with the topic of attribution knowledge of a director to the company as principal: see generally 22.49–22.62).

There are some other late arriving cases that appear in the footnotes but deserve more detailed treatment, which awaits the fourth edition. I wish to extend thanks to Felicia Gardner for her excellent editing and proof-reading, and to Hayley Moore of LexisNexis Butterworths for managing the project. The staff of the University of Tasmania's Law Library as always merit kudos for ever-willing prompt assistance. Mistakes again remain my own responsibility. I have attempted to state the law to the material available to me by 1 July 2013. G E Dal Pont Hobart 11 September 2013

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A Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Table of Cases > Table of Cases

Table of Cases [Current to September 2013] Please click on the link below to download the entire chapter. References are to paragraphs

A A G Webster & Sons Ltd v Cotton (1919) 15 Tas LR 17 … 16.5, 16.14 A L Underwood Ltd v Bank of Liverpool and Martins [1924] 1 KB 775 … 20.48, 20.49, 21.12 A L Wilkinson Ltd v Brown [1966] 1 All ER 509 15.35, 15.36, 15.37 A Norton Pty Ltd v Fowler (1966) 67 SR (NSW) 251 15.53, 16.12 A R Wright & Son Ltd v Romford Borough Council [1957] 1 QB 431 1.42 A Simpson & Son Ltd v Ray (1961) 35 ALJR 195 22.69 A v B1 (No 2) (2012) 271 FLR 122; [2012] WASC 383 1.6, 1.7, 22.3 Aaron Acceptance Corp v Adam (1987) 37 DLR (4th) 133 1.19, 1.31, 10.1, 12.36 Aberdeen Railways Co v Blakie Brothers (1854) 1 Macq 461 10.13 Abrahams v Watson (1886) 7 LR (NSW) L 152 23.51 Abu Dhabi National Tanker Co v Product Star Shipping Ltd [1992] 2 All ER 20 19.29 Academy Aluminum Products Ltd v Mclnerny Realty Ltd (1980) 113 DLR (3d) 289 11.27, 15.67, 15.74, 22.34 Acatos v Burns (1878) 47 LJQB 566 6.5 Acceptance Corporation of Canada Ltd v Weisman (1979) 96 DLR (3d) 159 23.58 Accidia Foundation v Simon C Dickinson Ltd [2010] EWHC 3058 (Ch) 8.15, 10.14 Ackroyd & Sons v Hasan [1960] 2 QB 144 15.21 ACN 007 528 207 Pty Ltd (in liq) v Bird Cameron (2005) 91 SASR 570; [2005] SASC 204; BC200503824 1.6, 2.27, 4.13 Across Australia Finance Pty Ltd v Bassenger [2008] NSWSC 799; BC200807110 8.31, 20.57

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Active Property Marketing Services (Aust) Pty Ltd v Joelco Pty Ltd (2007) Q ConvR ¶54-673; [2007] QSC 167; BC200705439 18.24 Acute Property Developments Ltd v Apostolou [2013] Bus LR D22; [2013] EWHC 200 (Ch) 20.45 Adams v Canada (1998) 159 DLR (4th) 205 19.1 — v Elphinstone (1993, unreported); BC9300066 5.42, 5.46 — v Morgan & Co Ltd [1924] 1 KB 751 18.9 Adams-Eden Furniture Ltd v Kansa General International Insurance Co (1996) 141 DLR (4th) 288 11.41, 24.21, 24.22 Adamson v Jarvis (1827) 4 Bing 66; 130 ER 693 18.9, 24.14, 24.16 Addstead Pty Ltd v Liddan Pty Ltd (1997) 70 SASR 21; BC9705090 24.6 Administrator of German Property v Knoop [1933] 1 Ch 439 1.51 Advance Bank Australia Ltd v Fleetwood Star Pty Ltd (1992) 7 ACSR 387; BC9201901 20.74 Advanced Realty Funding Corp v Bannink (1979) 106 DLR (3d) 137 9.12, 10.9, 12.8, 12.9, 12.10, 15.70, 18.10, 18.18 Aequitas v AEFC Leasing Pty Ltd (2001) 19 ACLC 1006; [2001] NSWSC 14; BC200101950 12.12, 12.14, 12.18 AGC (Advances) Ltd v McWhirter (1977) 1 BPR 9454 23.67 Agriculturist Insurance Co (Baird's case), Re (1870) LR 5 Ch App 725 1.48 Aidinis, Re (1975) 12 SASR 158 11.28 Akarana Real Estate Ltd v Angus [1993] ANZ ConvR 91 8.10, 15.75 Akedian Co Ltd v Royal Insurance Australia Ltd (1997) 148 ALR 480; BC9704029 11.44 Albany Real Estate Ltd v Vousden [1998] ANZ ConvR 131 16.16 Alderton v Prudential Assurance Company Ltd (1993) 41 FCR 435; BC9304667 22.44 Alexander Stenhouse Ltd v Austcan Investments Pty Ltd (1993) 112 ALR 353; BC9303607 11.43 Alexander v Sizer (1869) 4 Ex 102 23.25 — v Webber [1921] 1 KB 642 10.14, 12.12 Alexander Ward & Co Ltd v Samyang Navigation Co Ltd [1975] 1 WLR 673 5.51 Aliotta v Broadmeadows Bus Service Pty Ltd (1988) ATPR ¶40-873 22.21, 22.37, 24.29 Allam & Co Ltd v Europa Poster Services Ltd [1968] 1 All ER 826 9.1, 9.2, 9.19

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Allen v Allen (1955) 55 SR (NSW) 75 18.15, 18.16 — v Anderson [1969] NZLR 951 16.25 — v F O'Hearn & Co [1937] AC 213 19.7, 19.28 Alliance Acceptance Company Ltd v Oakley (1987) 48 SASR 337 19.16, 20.41 Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd (2013) 296 ALR 465; [2013] FCAFC 29; BC201301037 1.4, 1.6, 1.48, 4.4, 4.13, 13.3 Alliance & Leicester Building Society v Edgestop Ltd [1993] 1 WLR 1462 20.39, 20.44, 22.15 Alliance Strata Management Ltd v Real Estate Services Council (1994, unreported); BC9402302 12.4, 12.10 Allied Equipment Co Inc v Weber Engineered Products Inc, 237 F 2d 879 25.10 Allmed Pty Ltd v Opak Investments Pty Ltd (in liq) [1995] ANZ ConvR 153; BC9400713 5.4, 11.13 Alpha Trading Ltd v Dunnshaw-Patten Ltd [1981] QB 290 1.20, 15.44, 15.58 Anangel Atlas Compania Naviera SA v Ishika Wajima-Harima Heavy Industries Co Ltd [1990] 1 Lloyd's Rep 167  12.12, 12.47, 19.25, 19.26 Ancona v Marks (1862) 7 H & N 686 5.43 Anderson v Densley (1953) 90 CLR 460; BC5300950 15.26, 15.27, 15.28, 17.15 Andrews v Racken Pty Ltd [2007] NSWSC 1010; BC200707748 19.4, 20.10 — v Ramsay & Co [1903] 2 KB 635 15.69, 15.70 Aneco Reinsurance Underwriting Ltd (in liq) v Johnson & Higgins Ltd [2002] 1 Lloyd's Rep 157; [2001] UKHL 51  12.41, 12.45 Anglo-African Merchants Ltd v Bayley [1970] 1 QB 311 1.34, 10.14, 12.8 Anglo-Moravian Hungarian Junction Railway Co, Re (1875) 1 Ch D 130 1.47 Anglo-Scottish Beet Sugar Corporation Ltd v Spalding Urban District Council [1937] 2 KB 607 22.30, 22.31 Angus v McLachlan (1883) 23 Ch D 330 18.38 Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VR 37 12.58, 12.60 Anthoness v Melbourne Malting and Brewing Co (1888) 14 VLR 916 1.13, 1.14 Applegate v Moss [1971] 1 QB 407 2.21 Appleton v Binks (1804) 5 East 148; 102 ER 1025 23.35, 23.36 Apthorpe v Peter Schoenhofen Brewing Co Ltd (1899) 80 LT 395 2.27

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Architects of Wine Ltd (in liq) v Barclays Bank [2007] 2 All ER (Comm) 285; [2007] EWCA Civ 239 21.11 Arctic Shipping Co Ltd v Mobilia AB (The ‘Tatra’) [1990] 2 Lloyd's Rep 51 20.53 Ariadne Steamship Co v James McKelvie & Co [1922] 1 KB 518 23.18 Ariston Products Pty Ltd v Egan (1977) 3 ACLR 418 18.42 Arklow Investments Ltd v MacLean [2000] 1 WLR 594 (PC) 10.21, 12.6 Arktos Pty Ltd v Idyllic Nominees Pty Ltd (2004) ATPR ¶24-005; [2004] FCAFC 119; BC200402620 24.34 Armagas Ltd v Mundogas SA [1986] 1 AC 717 19.26, 20.7, 20.29, 20.34, 20.36, 20.39, 20.42, 22.14 Armitage v Nurse [1998] Ch 241 10.24, 22.35 Armstrong v Jackson [1917] 2 KB 822 12.21 — v Stokes (1872) LR 7 QB 598 19.12, 19.29, 23.38 — v Strain [1952] 1 KB 232 22.31, 22.65 Arthur J S Hall & Co (a firm) v Simons [2002] 1 AC 615; [2000] UKHL 38 8.31, 20.58 A/S Rendal v Arcos Ltd [1937] 3 All ER 577 22.63 Ashbury Railway Carriage and Iron Co Ltd v Riche (1875) LR 7 HL 653 3.4 Ashenden & Co v Dorney (1930) 32 WALR 111 8.9 Ashford Shire Council v Dependable Motors Pty Ltd [1961] AC 336 7.12 Ashton, Re (1891) 64 LT 28 22.53 Asplund v Selected Investments Inc, 103 Cal Rptr 2d 34 20.46 Asset Loan Co Pty Ltd v Mamap Pty Ltd [2005] QDC 295 17.29 Associated Midland Corporation v Sanderson Motors Pty Ltd [1983] 3 NSWLR 395 20.1, 21.22, 21.25, 21.26, 21.29, 21.31, 21.33, 21.34 Astley Industrial Trust Ltd v Miller [1968] 2 All ER 36 21.26 Astley v Austrust Ltd (1999) 197 CLR 1 10.5 Astron Developments Pty Ltd v Turnbull [1990] ANZ ConvR 583; BC9002477 11.11, 12.25 Asty Maritime Co Ltd and Panagiotis Stravelakis v Rocco Giuseppe & Figli, SNC (The ‘Astyanax’) [1985] 2 Lloyd's Rep 109 19.34, 19.37, 19.38, 19.46 Atkinson v Brown [1963] NZLR 755 4.35

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— v Cotesworth (1825) 3 B & C 647; 107 ER 873 19.31 — v South British Insurance [1968] NZLR 45 11.53 Atlantic Mutual Insurance Co v Huth (1880) 16 Ch D 474 6.5 Atlas Maritime Co SA v Avalon Maritime Ltd (The ‘Coral Rose’) (No 1) [1991] 4 All ER 769 1.6, 2.26 Attenborough v St Katherine's Dock Co (1878) 3 CPD 450 18.7 Attorney-General (Ceylon) v Silva [1953] AC 461 20.17, 20.32 Attorney-General for Hong Kong v Reid [1994] 1 AC 324 12.12, 12.14, 12.15, 12.16, 12.19 Attorney-General for Nova Scotia v Christian (1974) 49 DLR (3d) 742 12.18 Attorney-General v Blake [1998] Ch 439 10.8, 10.19, 10.21, 12.6 — v Charnock (1883) 17 SALR 1 23.39 — v Davy (1741) 2 Atk 212; 26 ER 531 4.35 — v London Corporation (1850) 2 Mac & G 247; 42 ER 95 13.23 — v Trueman (1843) 11 M & W 694; 152 ER 983 18.41 — v Walmsley (1843) 12 M & W 179; 152 ER 1160 18.41 — v Wylde (1946) 47 SR (NSW) 99 5.7, 5.40, 5.42, 5.43, 5.48 Attorney-General's Reference (No 1 of 1985) [1986] 1 QB 491 12.16 Attwood v Munnings (1827) 7 B & C; 108 ER 727 7.7, 7.8 Austcan Investments Pty Ltd v Sun Alliance Insurance Ltd (1992) 57 SASR 343 11.43 Australia and New Zealand Bank Ltd v Ateliers de Constructions Electriques de Charleroi (1966) 39 ALJR 414 7.34 Australia and New Zealand Banking Group Ltd v Alirezai (2002) Q ConvR ¶54-574; [2002] QSC 175; BC200203260  22.44 — v Alirezai (2004) Q ConvR 154-601; [2004] QCA 6; BC200400178 22.44 — v Westpac Banking Corporation (1988) 164 CLR 662; BC8802661 23.51, 23.52, 23.53 Australian Blue Metal Ltd v Hughes (1961) 79 WN (NSW) 498 5.6, 5.29, 5.31 — v — [1963] AC 74 25.10 Australian Broadcasting Commission v XIVth Commonwealth Games Ltd (1990) 18 NSWLR 540 4.5

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Australian Brokerage Ltd v Australian and New Zealand Banking Corporation Ltd (1934) 52 CLR 430; BC3490110  7.3, 8.5, 8.6, 22.15 Australian Capital Television Pty Ltd v Minister for Transport and Communications for the Commonwealth of Australia (1989) 86 ALR 119 20.74 Australian Central Credit Union v Commonwealth Bank of Australia (1991) 4 ACSR 145 4.21 Australian Competition & Consumer Commission v Gary Peer & Associates Pty Ltd (2005) 142 FCR 506; [2005] FCA 404; BC200502001 11.30, 24.42 Australian Development Corporation Pty Ltd v White Constructions (ACT) Pty Ltd (1993, unreported); BC9302150  19.38 Australian Growth Resources Corporation Pty Ltd (receivers and managers appointed) v Van Reesema (1988) 13 ACLR 261; BC8800382 11.23 Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385 1.5, 2.20 Australian Securities and Investments Commission v Citrofresh International Ltd (2007) 164 FCR 333; [2007] FCA 1873; BC200710475 24.34 Australian Securities and Investments Commission v Landy DFK Securities Ltd (2002) 123 FCR 548; [2002] FCA 1056; BC200204770 1.47 Australian Securities and Investments Commission v Lawrenson (1999) 33 ACSR 288; [1999] VSC 500; BC9908187 18.32 Australian Steam Navigation Co v Morse (1872) LR 4 PC 222 6.6 Australian Trade Commission v Goodman Fielder Industries Ltd (1992) 36 FCR 517; BC9203568 23.40 Authorised Nominees Pty Ltd, Re (rec apptd) (1999) 158 FLR 113; [1999] VSC 407; BC9907044 18.28 Avco Financial Services Ltd v Commonwealth Bank of Australia (1989) 17 NSWLR 679 18.33 — v White [1977] VR 561 18.33 Avery v Salie (1972) 25 DLR (3d) 495 11.23, 11.35 Avon County Council v Howlett [1983] 1 WLR 605 20.53 Awaroa Holdings Ltd v Commercial Securities and Finance Ltd [1976] 1 NZLR 19 22.31, 24.23 Aztech Science Pty Ltd v Atlanta Aerospace (Woy Woy) Pty Ltd (2005) 55 ACSR 1; [2005] NSWCA 319; BC200506977 5.13, 23.64

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B Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Table of Cases > Table of Cases

B Please click on the link below to download the entire chapter. B Johnson & Co (Builders) Ltd, Re [1955] Ch 634 1.43, 1.45 B Liggett (Liverpool) Ltd v Barclays Bank Ltd [1928] 1 KB 48 19.21 Backwell IXL Pty Ltd v Hogg [1998] VSC 155; BC9806647 15.2 Bacon v Purcell (1916) 22 CLR 307 25.34 Bahr v Nicolay (No 2) (1988) 164 CLR 604 4.7 Bailey & Whites (Ltd) v House (1915) 31 TLR 583 21.19 Bailey v Thurston & Co Ltd [1903] 1 KB 137 25.21 Baillie v Charman (1992) 94 DLR (4th) 403 10.6, 10.13, 12.2 Bain Securities Ltd v Curmi (1990) 1 ACSR 794; BC9002557 23.75 Baker v Leonard Oades Pty Ltd [1964–5] NSWR 1745 16.2, 16.14, 16.15, 16.17, 16.20 — v Taylor (1906) 6 SR (NSW) 500 1.10, 7.19, 7.22 Bakewell v Deputy Commissioner of Taxation (SA) (1937) 58 CLR 743; BC3700063 18.32 Balch v Symes (1823) Turn & R 87; 37 ER 1028 18.38 Ball v Dunsterville (1791) 4 Term Rep 313; 100 ER 1038 4.22 Ballantyne v Stokle (1924) 27 WALR 45 12.29 Balsamo v Medici [1984] 2 All ER 304 9.10, 9.15 Bamford v Shuttleworth (1840) 11 Ad & El 926; 113 ER 666 23.46 Bango v Holt (1971) 21 DLR (3d) 66 24.24 Bank Melli Iran v Barclays Bank [1951] 2 TLR 1057 5.31 Bank of New South Wales v Goulburn Valley Butter Company Pty Ltd [1902] AC 543 21.7 — v Owston (1879) 4 App Cas 270 6.2, 6.5 Bank of New Zealand v Fiberi Pty Ltd (1992) 8 ACSR 790; BC9201582 20.78

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— v Fiberi Pty Ltd (1993) 14 ACSR 736; BC9303667 20.78 — v New Zealand Guardian Trust Co Ltd [1999] 1 NZLR 664 10.7, 10.19 — v Sedgwick James Ltd (1995) 8 ANZ Ins Cas ¶61-280 24.19 Bank of Western Australia Ltd v Abdul [2012] VSC 222; BC201203748 1.45, 1.46 Bannatyne v MacIver [1906] 1 KB 103 19.21, 19.23 Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567 12.15 Barclays Bank plc v O'Brien [1994] 1 AC 180 22.44 — v Weeks Legg & Dean (a firm) [1999] QB 309 23.33 Barclays Finance Holdings Ltd v Sturgess (1985) 3 ACLC 662; BC8500651 20.74 Baring v Corrie (1818) 2 B & Ald 137; 106 ER 317 1.23, 1.25, 7.18, 18.29, 20.7 Barker v Burns Philp & Co Ltd (1944) 45 SR (NSW) 1 6.2, 6.4, 6.5, 6.6, 6.7, 6.11 — v Furlong [1891] 2 Ch 172 24.14, 24.15 — v Greenwood (1837) 2 Y & C Ex 414; 160 ER 458 8.11 Barkley v Barkley Brown [2009] NSWSC 76; BC200901115 13.1 Barnes v Addy (1874) LR 9 Ch App 244 24.4, 24.5 Barnett, Hoares & Co v South London Tramways Company (1887) 18 QBD 815 8.38, 22.68, 22.71 — v Isaacson (1888) 4 TLR 645 15.80 Baron v Husband (1833) 4 B & Ad 611; 110 ER 586 23.54 Barr Leary & Co v Hall (1907) 26 NZLR 222 1.56, 12.47 Barraclough v Crotty [1964] NSWR 454n 15.52, 15.85 — v Hellyer [1964] NSWR 449 15.52, 15.85 Barratt v Gough-Thomas [1951] Ch 242 18.34 — v Gilmour (1901) 17 TLR 292 15.54, 25.8, 25.10 — v J R West Ltd [1970] NZLR 789 24.25 Barrett v Steel Products Distributing Co Pty Ltd [1962] NSWR 981 22.68, 22.71 Barrington v Lee [1967] 1 Ch 1194 18.24 — v — [1972] 1 QB 326 23.48

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Barrister and Solicitor, Re a (1979) 40 FLR 26 18.32 Barron v Fitzgerald (1840) 6 Bing NC 201; 133 ER 79 18.14 Barry v Heathcote Ball & Co (Commercial Auctions) Ltd [2001] 1 All ER 944 23.66, 23.67, 23.68 Bartle v GE Custodians Ltd [2010] 3 NZLR 601; [2010] NZCA 174 1.32 Barton v London & North Western Railway Co (1890) 62 LT 164 5.15, 5.17 Bartram & Sons v Lloyd (1904) 90 LT 357 12.13 Barwick v English Joint Stock Bank (1867) LR 2 Ex 259 22.15 Baschet v London Illustrated Standard Company [1900] 1 Ch 73 24.9 Basma v Weekes [1950] AC 441 19.30, 23.42 Bastard v McCallum [1924] VLR 9 23.25 Bastion v Gideon Investments Pty Ltd (in liq) (2000) 35 ACSR 466 1.47 Bath v Standard Land Co Ltd [1911] 1 Ch 618 1.41, 24.2, 24.3 Baumwoll Manufactur Von Carl Scheibler v Furness [1893] AC 8 19.3 Bawden v London, Edinburgh, and Glasgow Assurance Co [1892] 2 QB 534 22.26 Baxter, Re (1863) 1 QSCR 99 7.7 Bay v Illawarra Stationery Supplies Pty Ltd (1986) 4 ACLC 429; BC8600883 23.65 Baycliffe v Butterworth (1847) 1 Ex 425 8.15 Bayer Pharma Pty Ltd v Farbenfabriken Bayer Aktiengesellschaft (1965) 120 CLR 285; BC6500030 5.40 Bayley v Manchester, Sheffield and Lincolnshire Railway Co (1872) LR 7 CP 415 22.10 Bayleys Real Estate Ltd v Coote [1992] ANZ ConvR 39 15.11 — v — [1993] ANZ ConvR 84 15.11 Bazley v Curry (1999) 174 DLR (4th) 45 22.15 BBK Development Corp Pty Ltd v Luedi (2004) 12 BPR 22,245; [2004] NSWSC 622; BC200404566 22.62 BCS Strata Management Pty Ltd v Robinson (2005) NSW ConvR ¶56-112; [2004] NSWCA 80; BC200401300 18.9 Beach Petroleum NL v Abbott Tout Russell Kennedy (1998) 16 ACLC 494; BC9707056 20.74 — v — (1999) 48 NSWLR 1; [1999] NSWCA 408; BC9907249 20.74, 22.57 — v Johnson (1993) 115 ALR 411; BC9304801 8.31, 22.48, 22.50, 22.55, 22.57

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Beal v South Devon Rail Co (1864) 3 H & C 337 11.34 Beavan, Re [1912] 1 Ch 196 19.21 Beck Helicopters Ltd v Edward Lumley & Sons (NZ) Ltd (1990) 6 ANZ Ins Cas ¶60-995 11.48, 11.50 Becket, Re [1918] 2 Ch 72 9.3, 9.8 Beckingham v Port Jackson & Manly Steamship Co (1957) 57 SR (NSW) 403 1.48 Bedford Insurance Co Ltd v Instituto de Resseguros do Brasil [1985] QB 966 5.15, 5.16, 5.17, 5.25, 5.40, 5.43 Begbie v State Bank of New South Wales Ltd (1994) ATPR ¶41-288; BC9305135 22.44 Belfield v Belfield (2012) 83 NSWLR 189; [2012] NSWCA 416; BC201209897 3.17 Bell Group Ltd (in liq) v Westpac Banking Corp (No 9) (2008) 39 WAR 1; [2008] WASC 239; BC200809492 1.39, 22.50 — v Herald & Weekly Times Ltd [1985] VR 613 8.14, 12.50 Bell v Balls [1897] 1 Ch 663 8.19, 8.20, 8.21, 8.22, 9.21 — v Rowe (1901) 26 VLR 511 8.7 — v Tinmouth (1987) 39 DLR (4th) 595 10.3, 10.5 Bellamy and Metropolitan Board of Works, Re (1883) 24 Ch D 387 8.7 Bellingham v Bly (1915) 34 NZLR 538 15.23 Belmont Finance Corp Ltd v Williams Furniture Ltd (No 1) [1979] 1 Ch 250 22.57 Belven Enterprises Pty Ltd v Lydham Pty Ltd (1996) 133 FLR 24; BC9603581 8.42, 20.82 Belvior Finance Co Ltd v Harold G Cole & Co Ltd [1969] 1 WLR 1877 21.26 Bendigo Central Freezing and Fertiliser Co Ltd v Cunningham [1919] VLR 387 12.18, 19.25 Benhams Ltd v Kythira Investments Ltd [2004] EWHC 2973 (QB) 15.5 Beningfield v Kynaston (1887) 3 TLR 279 15.26 Bennett & Co v Connors [1953] St R Qd 14 16.13, 16.14 Bennett v Bayes (1860) 5 H & N 391; 157 ER 1233 24.8 Benson-Brown v HIH Casualty & General Insurance Ltd [2001] WASC 6; BC200100044 11.44 Bentall, Horsley and Baldry v Vicary [1931] 1 KB 253 1.20, 15.77 Bentley v Craven (1853) 18 Beav 75 10.6

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Benton v Campbell, Parker & Co Ltd [1925] 2 KB 410 23.8, 23.44 Berben v Hedditch [1982] ANZ ConvR 535 16.16, 16.22 Berceanu v Boltons Real Estate Pty Ltd (2004) 24 Qld Lawyer Reps 308; [2004] QDC 18 12.31 Berezovsky v Edmiston & Co Ltd (The ‘Darius’) [2011] 1 Lloyd's Rep 419; [2010] EWHC 1883 (Comm) 16.3 Berkeley v Hardy (1826) 5 B & C 355; 108 ER 132 4.22 Berry v Hodson [1989] 1 Qd R 361 22.61 Bertram v Metters [1921] SASR 172 23.5 Betts & Drewe v Gibbins (1834) 2 Ad & El 51; 111 ER 22 18.8 Bevan v Webb [1901] 2 Ch 59 3.17, 3.28, 3.29, 13.2 Bewdley Election Petition (1869) 19 LT 676 14.13 Bibb v Allen 149 US 481 8.15 Biberfield v Berens [1952] 2 QB 770 6.12 Biddle v Bond (1865) 6 B & S 225; 122 ER 1179 13.25 Big Brother Movement Ltd v Richard Stanton & Sons Pty Ltd [1989] ANZ ConvR 153; BC8801424 15.41 Big Glory Seafoods Ltd v New Zealand Insurance Co Ltd (1992) 7 ANZ Ins Cas ¶61-145 22.52, 22.53 Biggar v McLeod [1978] 2 NZLR 9 8.31 — v Rock Life Assurance Co [1902] 1 KB 516 22.25 Binstead v Buck (1777) 2 Wm Bl 1117; 96 ER 660 6.10 Bird v Boulter (1833) 4 B & Ad 443; 110 ER 522 8.22 — v Brown (1850) 4 Ex 786; 154 ER 1433 5.41, 5.42, 5.43, 5.48 Birjandi v Todaytech Distribution Pty Ltd [2005] WASCA 44; BC200500987 8.35 Birtchnell v Equity Trustees, Executors and Agency Co Ltd (1929) 42 CLR 384; BC2900019 1.48, 20.62 — v Morris [1923] VLR 201 15.83, 16.15 Bishopsgate Motor Finance Corporation Ltd v Transport Brakes Ltd [1949] 1 KB 322 20.1, 21.29 Black and Armstrong v Great West Life Assurance (1986) 26 DLR (4th) 691 16.13 Black v Smallwood (1964) 65 SR (NSW) 431 23.86 — v Smallwood (1966) 117 CLR 52; BC6600020 1.42, 23.59, 23.61, 23.62, 23.63, 23.86

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Blackburn Building Society v Cunliffe, Brooks, & Co (1882) 22 Ch D 61 19.21, 19.22 — v Cunliffe, Brooks, & Co (1884) 9 App Cas 857 19.22 Blackburn, Low & Co v Vigors (1887) 12 App Cas 531 1.11, 7.1, 22.52, 22.55 Blackburn v Mason (1893) 68 LT 510 8.16 — v Scholes (1810) 2 Camp 341; 170 ER 1177 25.1 Blackham v Haythorpe (1917) 23 CLR 156; BC1790129 12.25 Blackley v National Mutual Life Association of Australasia Ltd [1972] NZLR 1038 22.56, 22.63, 22.64 Blackmagic Design Pty Ltd v Overliese (2010) 84 IPR 505; [2010] FCA 13; BC201000102 10.8 — v — (2011) 191 FCR 1; [2011] FCAFC 24; BC201100702 10.8 Blackman v Thompson [1994] ANZ ConvR 279 10.12, 11.21, 12.28 Blackstone v Wilson (1857) 26 LJ Ex 229 22.68 Blades v Free (1829) 9 B & C 167; 109 ER 63 25.44 Blake & Co v Sohn [1969] 3 All ER 123 15.63, 15.65 Blanchette v CIS Ltd (1973) 36 DLR (3d) 561 22.25, 22.26, 22.27 Blandy Brothers & Co Lda v Nello Simoni Ltd 8.13 Blaustein v Maltz, Mitchell & Co [1937] 2 KB 142 13.9, 13.24, 13.25 BLB Corporation of Australia Establishment v Jacobsen (1974) 48 ALJR 372 10.6 Bliss v Withers (1883) 9 VLR (L) 32 15.5 Blocksidge and Ferguson Ltd v Campbell [1947] St R Qd 22 7.22, 15.13 Blomley v Ryan (1956) 99 CLR 362; BC5600790 3.2 Bloomsbury International Ltd (in administration) v Holyoake [2010] EWHC 1150 (Ch) 10.21 Blore v Sutton (1817) 3 Mer 237; 36 ER 91 9.21 Bloye's Trust, Re (1849) 1 Mac & G 488; 41 ER 1354 24.3 Blumberg v Life Interests and Reversionary Securities Corp [1897] 1 Ch 171 8.10 — v — [1898] 1 Ch 27 8.10 Blyth and Farnshawe, Re (1882) 10 QBD 207 8.29 Boardman v Phipps [1967] 2 AC 46 4.4, 10.9, 10.13, 10.21, 12.2

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Body Corporate 202254 v Taylor [2009] 2 NZLR 17; [2008] NZCA 317 24.11, 24.34 Boehm v Goodall [1911] 1 Ch 155 18.32 Bojczuk v Gregorcewicz [1961] SASR 128 19.21 Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 11.26 Boland v Yates Property Corporation Pty Ltd (1999) 167 ALR 575; BC9908012 11.32 Bolton Partners v Lambert (1889) 41 Ch D 295 5.24, 5.42, 5.43, 5.46, 5.47, 5.49 — v — (1889) 41 Ch D 295 5.42 Bolton v New Zealand Insurance Co Ltd [1995] 1 NZLR 224 11.43 Bond Media Ltd v John Fairfax Group Pty Ltd (1988) 16 NSWLR 82 22.71 Bondina Ltd v Rollaway Shower Blinds Ltd [1986] 1 All ER 564 23.20 Bonds & Securities (Trading) Pty Ltd v Glomex Mines NL [1971] 1 NSWLR 879 8.14, 10.11, 11.23 Bonette v Woolworths Ltd (1937) 37 SR (NSW) 142 4.7, 7.5, 8.2, 22.71 Bonfigli v Strachan, 192 Cal App 4th 1302 25.24, 26.8 Bonita, The (1861) 1 Lush 252; 167 ER 111 5.29 Booth Macdonald & Co Ltd v Hallmond (Official Assignee of) (1913) 33 NZLR 110 2.14 Boots v E Christopher & Co [1952] 1 KB 89 15.26, 15.30, 15.81 Borries v Imperial Ottoman Bank (1873) LR 9 CP 38 19.14, 21.5 ‘Borvigilant’ and ‘Romina G’, The [2003] 2 Lloyd's Rep 520; [2003] EWCA Civ 935 5.42 Borzi Smythe Pty Ltd v Campbell Holdings (NSW) Pty Ltd [2008] NSWCA 233; BC200808490 24.30, 24.31 Bosanquet v Mofflin (1906) 6 SR (NSW) 617 8.15 Boscawen v Bajwa [1995] 4 All ER 769 12.15 Boston Deep Sea Fishing and Ice Co v Ansell (1888) 39 Ch D 339 12.7, 12.14, 25.17 Boston Deep Sea Fishing Co v Farnham [1957] 3 All ER 204 5.7 5.7 Boston Fruit Company v British and Foreign Marine Insurance Company Ltd [1906] AC 336 5.12 Boughton v Knight (1873) LR 3 P & D 64 25.19 Boulas v Angelopoulos (1991) 5 BPR 11,477; BC9101486 7.3, 19.5, 19.18, 20.32, 20.50, 20.54, 23.91 — v Carter (2005) 220 ALR 572; [2005] NSWSC 891; BC200506576 13.5

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Bousfield v Wilson (1846) 16 M & W 185; 153 ER 1153 13.9 Bovine Ltd v Dent (1904) 21 TLR 82 25.12 Bower v Jones (1831) 8 Bing 65; 131 ER 325 8.15, 15.5 Bowman v Bacon (1897) 18 LR (NSW) L 12 20.28, 20.36 Bow's Emporium Ltd v A R Brett and Co Ltd (1928) 44 TLR 194 15.12, 15.39, 16.6, 16.21 Boyd v O'Connor [1923] VLR 603 7.13, 7.19, 7.22, 7.26 Boyson v Coles (1817) 6 M & S 14; 105 ER 1148 21.17 Boyter v Thomson [1995] 2 AC 628 19.28, 19.29 BP plc v AON Ltd [2006] 1 All ER (Comm) 789; [2006] EWHC 424 (Comm) 9.15 Bradburn v Foley (1878) 3 CPD 129 8.16 Bradley v Adams [1989] 1 Qd R 256 16.26, 17.15 — v Riches (1878) 9 Ch D 189 22.56 Brakoulias v Karunaharan [2012] VSC 272; BC201204385 11.26 Branca v Cobarro [1947] 1 KB 854 11.15 Brandao v Barnett (1846) 12 Cl & Fin 787; 8 ER 1622 18.42 Branwhite v Worcester Works Finance Ltd [1969] 1 AC 552 1.31, 4.5, 4.7, 4.14 Bray v F Hoffmann-La Roche Ltd (2002) 118 FCR 1; [2002] FCA 243; BC200200786 2.27 Break Fast Investments Pty Ltd v Giannopoulos (No 5) [2011] NSWSC 1508; BC201110860 20.74 Breen v Williams (1996) 186 CLR 71; BC9604086 10.8, 10.9, 10.19, 11.7, 13.3 Breese v Lindsay (1882) 8 VLR (E) 232 8.10 Bremner v Sinclair [2001] ANZ Conv R 29; BC9807354 5.22 Brewery Assets Corp, Re (Truman's Case) [1894] 3 Ch 272 22.53 Brian Cooper & Co v Fairview Estates (Investments) Ltd [1987] 1 EGLR 18 16.2, 16.3 Brick and Pipe Industries Ltd v Occidental Life Nominees Pty Ltd [1992] 2 VR 279 8.42, 20.74 Brickenden v London Loan & Saving [1934] 3 DLR 465 10.12 Bride v Freehill Hollingdale & Page [1996] ANZ ConvR 594 1.44, 1.45 Bridger v Savage (1885) 15 QBD 363 13.9

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Bridges & Salmon Ltd v The ‘Swan’ (Owner) [1968] 1 Lloyd's Rep 5 23.14, 23.16, 23.18, 23.19, 23.25 Bridges v Garrett (1870) LR 5 CP 451 8.7, 8.10 Brien v Dwyer (1978) 141 CLR 378; BC7800086 1.28, 8.8, 8.9, 8.10, 15.35, 23.48, 23.50 Briess v Woolley [1954] AC 333 22.32, 22.33 Briggs v James Hardie & Co Pty Ltd (1989) 16 NSWLR 549 2.26, 2.27 Bright, Ex parte (1878) 10 Ch D 566 2.6, 15.17 Brind v Hampshire (1836) 1 M & W 365; 150 ER 475 23.54 Brinsmead v Harrison (1872) LR 7 CP 547 22.1 Brinson v Davies (1911) 105 LT 134 1.20 Brisbane Units Development Corporation Pty Ltd v Robertson [1983] 2 Qd R 105 22.35 Bristol and West Building Society v Mothew [1996] 4 All ER 698 10.6, 10.19 Bristow v Whitmore (1861) 9 HL Cas 391 5.53 British Bank for Foreign Trade Ltd v Novimex Ltd [1949] 1 KB 623 25.32 British Bank of the Middle East v Sun Life Assurance of Canada (UK) Ltd [1983] 2 Lloyd's Rep 9 20.19, 20.26 British Russian Gazette and Trade Outlook Ltd v Associated Newspapers Ltd [1933] 2 KB 616 23.91 British Union and National Insurance Co v Rawson [1916] 2 Ch 476 18.12 Broadbent v Medical Board of Queensland [2010] QCA 352; BC201009409 20.59 Broadmeadows Bus Service Pty Ltd (1988) ATPR ¶40-873 22.34 Brocklesby v Temperance Permanent Building Society [1895] AC 173 21.15 Bronester Ltd v Priddle [1961] 3 All ER 471 15.86, 15.87 Brook v Hook (1871) 6 LR 6 Ex 89 5.8, 5.15 Brooke v Bool [1928] 2 KB 578 22.1 Brookhouse v New South Wales Mutual Real Estate Fund Ltd (1978) ATPR ¶40-064 22.66 Brooklyn Lane Pty Ltd v MIC Australia Pty Ltd (2001) 11 ANZ Ins Cas ¶61-487; [2001] VSC 33; BC200100378  11.47 Broom v Hall (1859) 7 CBNS 503; 141 ER 911 18.13 Brown v Andrew (1849) 18 LJQB 153 4.32, 4.33, 4.35

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— v Farebrother (1888) 58 LJ Ch 3 8.24 — v Hardy (1868) 5 WW & A'B (L) 245 5.19 — v Westminster Bank Ltd [1964] 2 Lloyd's Rep 187 5.15 Brownett v Newton (1941) 64 CLR 439; BC4100028 23.88, 23.90 Browning v Provincial Insurance Co of Canada (1873) LR 5 PC 263 19.42 Bruce v Good [1917] NZLR 514 2.2, 2.7 — v Tyley (1916) 21 CLR 277 3.17 Brundza v Robbie & Co (1952) 86 CLR 345 9.10 Bruton v Regina City Policemen's Association, Local No 155 [1945] 3 DLR 437 4.1, 6.2, 6.5, 6.11 Bryant, Powis & Bryant v La Banque du Peuple [1893] AC 170 7.7 Buchanan v Blairfelt Pty Ltd [1992] ANZ ConvR 202 10.28 Buckingham v Trotter (1901) 1 SR (NSW) 253 23.71 Buckland v Clarke [1956] SR (NSW) 185 20.7, 21.33 Budberg v Jerwood (1934) 51 TLR 99 21.26 Buller v Harrison (1777) 2 Cowp 565; 98 ER 1243 23.53 Bullock v Utah, Department of Transportation, 966 P 2d 1215 5.31 Bundoora Park Estate Company Ltd v Fisher (1894) 20 VLR 460 5.10 Bunney v Halliday [1956] St R Qd 450 15.30, 15.63, 15.81 Burchell v Gowrie and Blockhouse Collieries Ltd [1910] AC 614 11.19, 15.14, 16.23, 16.24 Burdick v Garrick (1870) LR 5 Ch App 233 10.9, 12.15 Burgis v Constantine [1908] 2 KB 484 21.6 Burke v State Bank of New South Wales (1994) 37 NSWLR 53; BC9403165 22.44 Burmeister v O'Brien [2008] 3 NZLR 842 22.62 Burns Philp & Co Ltd v Gillespie Brothers Pty Ltd (1947) 74 CLR 148; BC4700120 6.2, 6.3, 6.5, 6.6, 6.11 Buron v Denman (1848) 2 Ex 167 5.40 Burrell & Family Pty Ltd v Harris (2010) 270 LSJS 248; [2010] SASC 184; BC201004796 23.26

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Burrough v Skynner (1770) 5 Burr 2639; 98 ER 387 23.45 Burrows v Antoine (1921) 23 WALR 94 22.40 — v Rhodes [1899] 1 QB 816 18.16 Burt v Claude Cousins & Co Ltd [1971] 2 QB 426 2.16, 2.17, 20.7 Buseska v Sergio (1990) 102 FLR 157 8.31, 20.58 Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60; BC200408200 24.30, 24.31, 24.38 — v Longwarry and District Dairymen's Co-operative Association Ltd [1939] VLR 263 22.70, 22.71 Butler v Duckett (1891) 17 VLR 439 4.22 Butlers (London) Ltd v Roope & Co [1922] NZLR 549 18.14 Butwick v Grant [1924] 2 KB 483 8.7

End of Document

C Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Table of Cases > Table of Cases

C Please click on the link below to download the entire chapter. C v Johnson [1967] SASR 279 1.56, 4.14, 14.11 Cadbury Schweppes Inc v FBI Foods Ltd (1999) 167 DLR (4th) 577 10.12 Cadd v Cadd (1909) 9 CLR 171 1.10, 4.9, 12.24 Cadogan Petroleum plc v Tolley [2011] EWHC 2286 (Ch) 12.16 Caffrey v Montano (1968) 88 WN (NSW) (Pt 1) 240 15.26 Cahn v Pockett's Bristol Channel Steam Packet Co [1899] 1 QB 643 21.22 Calder v Dobell (1871) LR 6 CP 486 19.31 Caldwell v J A Neilson Investments Pty Ltd (2007) 69 NSWLR 120; [2007] NSWCA 3; BC200700853 11.43, 11.45 — v Sumpters [1972] Ch 478 18.39 — v Treloar (1982) 30 SASR 202 25.34 Calgary Hardwood & Veneer Ltd v Canadian National Railway Co (1979) 100 DLR (3d) 302 20.32 Calico Printers' Association v Barclays Bank (1931) 145 LT 51 9.10, 9.11, 9.13, 9.16 Cambridge Gulf Holdings NL v CLC Corporation (1998, unreported); BC9804368 8.42, 8.43, 20.67 Cameron v Dunedin Real Estate Ltd [1968] NZLR 39 1.21 Campbell v Kitchen & Sons Ltd and Brisbane Soap Co Ltd (1910) 12 CLR 515; BC1000001 1.12 — v Pye (1954) 54 SR (NSW) 308 23.5 — v Smith (1887) 13 VLR 439 18.22, 18.23 Canada Trust Co v Gordon [1978] 5 WWR 268 5.28 Canadian Dredge & Dock Co Ltd v R (1985) 19 DLR (4th) 314 22.48 Canadian Imperial Bank of Commerce v Vopni (1978) 86 DLR (3d) 383 23.27 Canadian Laboratory Supplies Ltd v Engelhard Industries of Canada Ltd (1977) 78 DLR (3d) 232 5.53, 20.70

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— v Engelhard Industries of Canada Ltd (1979) 97 DLR (3d) 1 5.53, 19.1, 19.3, 20.44 Canniffe v Howie [1925] St R Qd 121 17.15 Cant v Miller (1913) 13 SR (NSW) 505 1.21, 1.22, 18.2 Capell v Winter [1907] 2 Ch 376 21.18 Capital Fire Insurance Association, Re (1883) 24 Ch D 408 18.30, 18.41 Capital Management Corporation Ltd v Hackett Development Pty Ltd (1971) 18 FLR 362 15.43 Capper's Pty Ltd v L & M Newman Pty Ltd [1960] NSWR 143 8.35, 22.70 Capricorn Financial Planners Pty Ltd v Australian Securities and Investments Commission (1999) 31 ACSR 46; [1999] FCA 558; BC9902078 22.46 Carey v Korda and Winterbottom (No 2) (2011) 85 ACSR 331; [2011] WASC 220; BC201106767 1.45 Cargill v Bower (1878) 10 Ch D 502 24.43 Carl Zeiss Stiftung v Herbert Smith & Co (No 2) [1969] 2 Ch 276 24.5 Carleton v Tortosa, 17 Cal Rptr 2d 734 (Cal App 1993) 11.27 Carlile v McEdward (1882) 16 SALR 109 16.5 Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 3.26 Carminco Gold & Resources Ltd v Findlay & Co Stockbrokers (Underwriters) Pty Ltd (2007) 243 ALR 472; [2007] FCAFC 194; BC200711038 23.43 Carmody v Priestley & Morris Perth Pty Ltd (2005) 30 WAR 318; [2005] WASC 120; BC200504173 11.32 Carre v Owners Corporation - Strata Plan 53020 (2003) 58 NSWLR 302; [2003] NSWSC 397; BC200302275 1.7 Carrell v Carrell [1975] 2 NZLR 441 8.25, 20.58 Carsted v Gass (1980) 116 DLR (3d) 550 15.30, 15.62, 15.63, 15.78 Carter Sumitomo Bank Ltd v Kartika Ratna Thahir [1993] 1 SLR 735 12.17 — v Bell & Sons [1936] 2 DLR 438 25.8, 25.9 Cary v Webster (1721) 1 Stra 480; 93 ER 647 23.51 Cashmere Enterprises Ltd v Mathias (2002) 20 NZTC 17,634; [2002] NZCA 23.31 Cassels v Stewart (1881) 6 App Cas 64 1.48, 20.62 Cave v Cave (1880) 15 Ch D 639 22.57 — v Mackenzie (1877) 37 LT 218 4.25

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CEC MacManus Realty Ltd v Bray (1970) 14 DLR (3d) 564 15.70 Cee Bee Marine Ltd v Lombard Insurance Co Ltd [1990] 2 NZLR 1 11.46, 11.51 Celthene Pty Ltd v W K J Hauliers Pty Ltd [1981] 1 NSWLR 606 5.11, 5.23, 5.25, 5.29 Central B C Planners Ltd v Hocker (1970) 10 DLR (3d) 689 11.23 Central Commodities Services Pty Ltd, Re (1984) 8 ACLR 801 18.32 Central Newbury Car Auctions Ltd v Unity Finance Ltd [1957] 1 QB 371 20.8, 21.29 Century Medical Inc v THLD Ltd [1999] NSWSC 731; BC9904254 2.27 Ceres Orchard Partnership v Fiatagri Australia Pty Ltd [1995] 1 NZLR 112 21.28, 21.31 CFTO-TV Ltd v Mr Submarine Ltd (1994) 108 DLR (4th) 517 2.22, 19.31 Chadburn v Moore (1892) 67 LT 257 7.16 Challenge Bank Ltd v Pandya (1993) 60 SASR 330 22.44 Challenger Group Holdings Ltd v Concept Equity Pty Ltd [2009] NSWCA 190; BC200907136 16.3, 16.9 Chamberlains v Lai [2007] 2 NSLR 7; [2006] NZSC 70 8.31, 20.58 Chancliff Holdings Pty Ltd v Bell [1999] FCA 1783; BC9908390 11.35 Chaney v Maclow [1929] 1 Ch 461 8.19, 8.20, 8.21, 8.22 Chao v British Traders and Shippers Ltd [1954] 1 All ER 779 22.20, 22.23 Chapman v Smethurst [1909] 1 KB 927 23.26 — v Smith [1907] 2 Ch 97 23.10 — v Walton (1833) 10 Bing 57; 131 ER 826 11.5 — v Winson (1904) 91 LT 17 15.21, 15.32 Chappell & McKeen v Peters (1913) 9 DLR 584 15.15 Chapple v Fagan (1909) 11 WALR 78 15.15, 15.83 — v Moss and Richardson (1920) 22 WALR 74 15.7 Charles Baker Ltd v Baker [1954] 3 DLR 432 10.9, 10.13 Charthill Professional Pty Ltd v Crosby [1998] ANZ ConvR 129; BC9740125 17.12 Chatenay v Brazilian Submarine Telegraph Co [1891] 1 QB 79 4.19 Chaudhry v Prabhakar [1988] 3 All ER 718 4.15, 10.5, 11.27, 11.36, 11.37, 11.38, 11.39

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Chelmsford Auctions Ltd v Poole [1973] QB 542 8.10, 18.23, 23.8 Chernishoff v Duncan Cotterill & Co [1990] ANZ ConvR 172 4.25 Cherry v Colonial Bank of Australasia (1869) LR 3 PC 24 23.84, 23.88 Cheshire & Co v Vaughan Bros & Co [1920] 3 KB 240 9.15, 10.31 Cheshire Mortgage Corporation Ltd v Grandison [2012] SLT 672; [2011] CSOH 157 23.88, 23.94 — v — [2013] PNLR 3; [2012] CSIH 66 23.94 Chesterfield and Midland Silkstone Colliery Co (Ltd) v Hawkins (1865) 3 H & C 677; 159 ER 698 23.35, 23.36 Chief Executive of New Zealand Customs Service v Nike New Zealand Ltd [2004] 1 NZLR 238; [2003] NZCA 218  2.27 China Pacific SA v Food Corporation of India [1982] AC 939 6.2, 6.3, 6.5, 6.7, 6.10, 18.8 Chisholm v Richardson (1876) 14 SCR (NSW) 334 18.7 Christie Owen & Davies Ltd v Rapacioli [1974] QB 781; 2 All ER 311 15.63, 16.21, 16.22 Christie v Harcourt & Co [1973] 2 NZLR 139 11.21 — v McCann (1972) 27 DLR (3d) 544 9.8, 10.9, 12.13, 12.29, 15.70 — v Robinson (1907) 4 CLR 1338; BC0700051 2.18, 23.45, 23.46, 23.48 Christopher Barker & Sons v Inland Revenue Commissioner [1919] 2 KB 222 1.38 Christopher (Hove) Ltd v Williams [1936] 3 All ER 68 23.70, 23.71 Churchill & Sim v Goddard [1937] 1 KB 92 1.13, 1.15 CIC Insurance Ltd v Bankstown Football Club Ltd (1995) 8 ANZ Ins Cas ¶61-232; BC9403571 20.38 Citibank Savings Ltd v Nicholson (1997) 70 SASR 206; BC9706031 22.44 City Bank of Sydney v McLaughlin (1909) 9 CLR 615; BC0900009 5.31, 19.21, 19.23 City Bank v Barrow (1880) 5 App Cas 664 7.23 City of Glenorchy v Addison (1967) 15 LGRA 259 8.26 Civilian War Claimants Association Ltd v The King [1932] AC 14 1.51 Clarey v Permanent Trustee Co Ltd [2005] VSCA 128; BC200503236 8.7, 20.16, 20.38 Clark Boyce v Mouat [1993] 3 NZLR 641 10.8 Clark Equipment Credit of Australia Ltd v Como Factors Pty Ltd (1988) 14 NSWLR 552 18.32

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Clark, Re (1985) 13 FCR 106 15.11 Clarke v Abou-Samra (2010) 271 LSJS 42; [2010] SASC 205; BC201004775 19.21, 19.23 — v Paterson (2003) 11 BPR 20,781; [2003] NSWCA 160; BC200303763 7.15 Clarkson Booker Ltd v Andjel [1964] 2 QB 775 23.73, 23.74, 23.75 Claude R Ogden & Co Pty Ltd v Reliance Fire Sprinkler Co Pty Ltd [1973] 2 NSWLR 7 11.42, 11.53, 22.29 Clauss v Pir [1988] Ch 267 3.27, 23.36, 23.37 Clayton Newbury Ltd v Findlay [1953] 2 All ER 826n 15.88, 15.89 Clayton Robard Management Ltd v Siu (1988) 6 ACLC 57; BC8701056 1.5, 1.10, 2.5, 20.11, 20.14, 20.23, 20.26, 20.35 CLC Corporation v Cambridge Gulf Holdings NL (1997) 25 ACSR 296; BC9705523 8.43, 20.67 Cleadon Trust Ltd, Re [1939] 1 Ch 286 19.21 Cleary v Sloan [1943] NZLR 307 3.20, 3.23 Clements v Hoppo [1937] SASR 231 7.18, 8.7 Clerk v Laurie (1857) 2 H & N 199; 157 ER 83 25.24 Clermont v Mid-West Steel Products Ltd (1965) 51 DLR (2d) 340 20.26 Cleveland Manufacturing Co Ltd v Muslim Commercial Bank Ltd [1981] 2 Lloyd's Rep 646 20.16, 20.38 Clifford Harris & Co v Solland International Ltd [2005] 2 All ER 334; [2004] EWHC 2488 (Ch) 18.38 Clifton v Johnstone [1921] NZLR 35 2.25 Close v Phipps (1844) 7 Man & G 586; 135 ER 236 23.51 Club Flotilla (Pacific Palms) Ltd v Isherwood (1987) 12 ACLR 387; BC8701101 8.39 Clune, Re (1988) 14 ACLR 261 8.31, 18.8, 18.9, 18.10, 18.19, 18.22, 18.24, 18.25 Cochrane v Rymill (1879) 40 LT 744 24.14, 24.15 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; BC8200083 6.7, 15.88, 24.13 Cohen v Cohen (1929) 42 CLR 91; BC2900026 2.12, 13.6 — v Kittell (1889) 22 QBD 680 10.31

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Colbron v St Bees Island Pty Ltd (1995) 56 FCR 303 1.6, 7.14 Cole v Christie, Manson & Woods (1910) 26 TLR 469 11.2 — v North Western Bank (1875) LR 10 CP 354 21.1, 21.24 Coleman, Re (1929) 24 Tas LR 77 25.19 Colin Williams (Insurance) Pty Ltd (in liq), Re, and the Companies Act [1975] 1 NSWLR 130 1.34, 1.35 Collen v Wright (1857) 27 LJQB 215 23.82 Collett v Olsechuk (1958) 16 DLR (2d) 563 16.13 Colliers Jardine (NSW) Pty Ltd v Balog Investments Pty Ltd [1996] ANZ ConvR 527; BC9400243 1.22, 18.6 Collins v Associated Greyhound Racecourses Ltd [1930] 1 Ch 1 19.35, 19.41 — v Hill (1910) 12 WALR 174 18.9 — v Stimson (1883) 11 QBD 142 2.16 Collum v Opie (2000) 76 SASR 588; [2000] SASC 107; BC200003772 22.49 Colmup Pty Ltd v Mecair Engineering Pty Ltd (1988) 93 FLR 91 3.19 Colonial Bank v Cady and Williams (1890) 15 App Cas 267 21.3, 21.15 — v Exchange Bank of Yarmouth, Nova Scotia (1886) 11 App Cas 84 23.9, 23.53 Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Company of Australia Ltd (1931) 46 CLR 41; BC3200006 1.4, 1.5, 2.21, 22.3, 22.4, 22.12, 22.16 Colonial Petroleum Oil Pty Ltd, Ex parte (1944) 44 SR (NSW) 306 22.1, 22.48 Columbus v Williamson & Co Ltd [1969] NZLR 708 15.2, 15.67, 15.75 Combulk Pty Ltd v TNT Management Pty Ltd (1993) 41 FCR 59 20.49 Comley v Wellman (1948) 65 WN (NSW) 268 15.38 Commerce Realty Ltd v Olenyk (1957) 8 DLR (2d) 60 10.1 Commercial Bank of Australia Ltd v Ipswich Electric Supply Co Ltd [1941] St R Qd 180 21.15, 21.19 Commercial Banking Co of Sydney Ltd v Mann [1961] AC 1 5.34, 5.53 Commissioners for Executing the Office of Lord High Admiral of the United Kingdom v National Provincial and Union Bank of England Ltd (1922) 127 LT 452 23.51 Commissioners of Taxation v English, Scottish and Australian Bank Ltd [1920] AC 683 21.11 Commissioners of the State Bank of Victoria v Permewan Wright & Co Ltd (1914) 19 CLR 457; BC1400007 21.11

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Commonwealth Bank of Australia v Australian Solar Information Pty Ltd (1987) 11 ACLR 380 23.64 — v Muirhead [1997] 1 Qd R 567; BC9603365 1.44 — v Perrin (2011) Q ConvR ¶54-765; [2011] QSC 274; BC201107193 5.15, 5.31 — v Smith (1991) 42 FCR 390 1.24 Commonwealth of Australia v Connell (1986) 5 NSWLR 218 24.8 Commonwealth Portland Cement Co Ltd v Weber, Lohmann & Co Ltd [1905] AC 66 10.21, 11.23 Commonwealth Trust Co v Dewitt (1973) 40 DLR (3d) 113 19.2, 19.31 Commonwealth Trust Ltd v Akotey [1926] AC 72 21.2 Commonwealth v Clark [1994] 2 VR 333 20.12 — v Rian Financial Services & Developments Pty Ltd (1992) 36 FCR 101; BC9203505 3.26 — v Verwayen (1990) 170 CLR 394 20.12 Compania Financiera ‘Soleada’ SA v Hamoor Tanker Corp Inc (The ‘Borag’) [1980] 1 Lloyd's Rep 111 18.35 Comptroller of Stamps (Vic) v Papalia (1982) 82 ATC 4080 1.30 Concrete Constructions Pty Ltd v Government Insurance Office of New South Wales [1966] 2 NSWR 609 5.8 Consolidated Company v Curtis & Son [1892] 1 QB 495 24.14, 24.15 Consolidated Traders Ltd v Downes [1981] 2 NZLR 247 1.44 Consolo Ltd v Bennett (2012) 207 FCR 127; [2012] FCAFC 120; BC201206471 1.48 Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Aust) Ltd (1986) 160 CLR 226 1.34, 1.36, 1.37, 8.15, 8.17, 19.9, 23.71 Construction Engineering (Aust) Pty Ltd v Hexyl Pty Ltd (1985) 155 CLR 541; BC8501129 1.48, 2.12, 20.62, 20.63 Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373; BC7500014 10.12, 12.19, 21.31, 24.6 Contractors Bonding Ltd v Snee [1992] 2 NZLR 157 22.44 Cook v Rodgers (1946) 46 SR (NSW) 229 21.22, 21.25 Cooke & Sons v Eshelby (1887) 12 App Cas 271 21.5 Cooke v Wilson (1856) 1 CBNS 153; 140 ER 65 23.3, 23.11, 23.14 Coolangatta Property Pty Ltd v Dyason [2011] NSWSC 884; BC201106184 15.42 Cooper v Fisken (1912) 33 ALT 231 23.16, 23.43

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— v Gardiner (1902) 2 SR (NSW) 67 23.14, 23.18, 23.19 — v O'Brien (1987) 47 SASR 71 12.28 — v Slade (1858) 6 HLC 746 14.13 Copeland v Wedlock (1905) 6 OWR 539 15.23 Coppin v Walker (1816) 7 Taunt 237; 129 ER 95 23.8 Cordelia Holdings Ltd v Newkey Investments Pty Ltd [2002] FCA 1018; BC200204557 12.38 Cordiant Communications (Australia) Pty Ltd v Communications Group Holdings Pty Ltd (2005) 194 FLR 322; [2005] NSWSC 1005; BC200507646 3.20, 26.8 Cornfoot v Fowke (1840) 6 M & W 358; 151 ER 450 22.31, 24.23 Cornwal v Wilson (1750) 1 Ves 509; 27 ER 1173 5.29 Corporate Affairs Commission (NSW) v Transphere Pty Ltd (No 2) (1985) 9 ACLR 1005 8.42, 20.46 Cothay v Fennell (1830) B & C 671; 109 ER 599 4.31 Coulter v Readhead (1931) 31 SR (NSW) 432 25.6, 25.11, 25.14 Council of Auctioneers and Agents v G J Alexander Pty Ltd [1972] 2 NSWLR 375 25.1 County Homesearch Co (Thames & Chilterns) Ltd v Cowham [2008] 1 WLR 909; [2008] EWCA Civ 26 16.3, 16.4 County Life Assurance Co, Re (1870) LR 5 Ch App 288 20.75 Cousins v Cousins [1991] ANZ ConvR 245 10.21 Couturier v Hastie (1852) 8 Exch 40 1.14 Cowburn v Leventis, 619 SE 2d 437 20.46 Cowell v Simpson (1809) 16 Ves 275; 33 ER 989 18.29, 18.38 Cox v Goldcrest Developments (NSW) Pty Ltd (2000) 50 NSWLR 76; [2000] NSWSC 763; BC200004323 4.5, 4.31 — v Hickman (1860) 8 HL Cas 268 1.48 — v Isles, Love & Co [1910] St R Qd 80 5.30 — v Midland Counties Railway Co (1849) 2 Ex 268; 154 ER 844 6.10 — v Mosman and Isles, Love & Co [1909] St R Qd 45 5.35, 5.53, 12.49, 23.80 — v Prentice (1815) 3 M & S 344; 105 ER 641 23.53 Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Company Pty Ltd (1975) 133 CLR 72; BC7500063; [1975] VR 607 5.15, 5.31, 20.33, 20.35, 20.64, 20.69

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Crackle, Re (1983) 150 DLR (3d) 371 11.11, 11.22 Crampsey v Deveney (1968) 2 DLR (3d) 161 5.20, 20.26 Crantrave Ltd (in liq) v Lloyds Bank plc [2000] QB 917 19.21 Crawford Fitting Co v Sydney Valve & Fittings Pty Ltd (1988) 14 NSWLR 438 25.8, 25.10 Crawford v Parish (1991) 105 FLR 361 24.39 Credit Agricole Indosuez v Muslim Commercial Bank Ltd [2000] Lloyd's Rep 275 19.17 Credit Lyonnais Bank Nederland NV v Export Credits Guarantee Department [2000] 1 AC 486 22.3 Credit Services Investments Ltd v Evans [1974] 2 NZLR 683 22.3 Crerar v McCooke [1913] VLR 62 16.14 Cricklewood Holdings Ltd v C V Quigley & Sons Nominees Ltd [1992] 1 NZLR 463 22.57 Cripps v Lakeview Farm Fresh Ltd (in receivership) [2006] 1 NZLR 238 1.44, 4.12, 5.15, 7.2 Criterion Properties plc v Stratford UK Properties LLC [2004] 1 WLR 1846; [2004] UKHL 28 20.39, 20.45 Crocker Horlock Ltd v B Lang & Co Ltd [1949] 1 All ER 526 25.32 Cropper v Cook (1868) LR 3 CP 194 13.9 Croskery v Gee [1957] NZLR 586 6.10 Cross & Co v Matthews and Wallace (1904) 91 LT 500 23.79 Crowder v McAlister [1909] St R Qd 203 5.8 Crowfoot v Gurney (1832) 9 Bing 372; 131 ER 655 23.54 Crowson v HSBC Insurance Brokers [2010] Lloyd's Rep IR 441 24.19 Crowther v Elgood (1887) 34 Ch D 691 10.17 Cruse v Paine (1869) 4 Ch App 441 8.15 CSX Transportation Inc v Recovery Express Inc 415 F Supp 2d 6 (D Mass 2006) 20.46 CTM Nominees Pty Ltd v Galba Pty Ltd (1982) 2 BPR 9588 8.28, 20.60, 25.1 Cull v Backhouse (1795) 6 Taunt 148; 128 ER 990 9.10 Cunliffe-Owen v Teather & Greenwood [1967] 3 All ER 561 8.17 Cunningham v Condon (1912) 14 WALR 203 12.45 Curlewis v Birkbeck (1863) 3 F & F 894; 176 ER 406 25.38

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Curtis v Williamson (1874) LR 10 QB 57 23.71 Curwen v Milburn (1889) 42 Ch D 424 18.38 Custom Credit Corporation Ltd v Griffith-Jury Co Pty Ltd [1965] WAR 77 1.5, 1.31, 2.3, 2.8 — v Lynch [1993] 2 VR 469 1.31, 4.5 Cyril Andrade Ltd v Sotheby & Co (1931) 47 TLR 244 8.9

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D Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Table of Cases > Table of Cases

D Please click on the link below to download the entire chapter. Dadswell v Jacobs (1887) 34 Ch D 278 13.2 Dainton v Chivers [1928] VLR 555 1.20 Dale v Manitoba (1997) 147 DLR (4th) 605 20.27 Dalgety & Co Ltd v Gray (1919) 26 CLR 249 12.36 Dalton v Lawson Hill Estate Pty Ltd (2005) 66 IPR 525; [2005] FCAFC 169; BC200506235 24.30, 24.31 Daly v Sydney Stock Exchange Ltd (1986) 160 CLR 371; BC8601425 10.11, 11.51, 12.5 Danby v Coutts & Co (1885) 29 Ch D 500 7.8 D'Angibau, Re (1880) 15 Ch D 228 3.5 Daniell v Paradiso (1991) 55 SASR 359 21.3 Daniels v Trefusis [1914] 1 Ch 788 4.25, 4.28, 8.27 Danish Mercantile Co Ltd v Beaumont [1951] Ch 680 5.51 Danziger v R J Thompson [1944] KB 654 19.37 Daraydan Holdings Ltd v Solland International Ltd [2005] Ch 119; [2004] EWHC 622 (Ch) 9.16, 12.12, 12.17 D'Arcy v Tamar, Kit Hill and Callington Railway Co (1867) LR 2 Ex 158 8.31 Dargusch v Sherley Investments Pty Ltd [1970] Qd R 338 12.43, 15.70 Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500; BC8601387 10.23, 10.25 Darrell McGregor (Contractor) Ltd v Mountain Lake Holdings Ltd [2006] NZHC 591 20.18 D'Atri v Chilcott (1975) 55 DLR (3d) 30 1.28, 10.1, 11.11 Daulia Ltd v Four Millbank Nominees Ltd [1978] Ch 231 8.19 Davey v Paine Brothers (Motors) Ltd [1954] NZLR 1122 21.21, 21.22, 21.25, 21.29, 21.31 — v Ron Farris Real Estate Pty Ltd (2006) 45 SR(WA) 270; [2006] WADC 148 15.31

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David Leahey (Aust) Pty Ltd v McPherson's Ltd [1991] 2 VR 367 15.50, 16.8 David Payne & Co Ltd, Re [1904] 2 Ch 608 22.56 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; BC9202662 23.51, 23.52 Davies v Collins [1945] 1 All ER 247 3.17 — v Littlejohn (1923) 34 CLR 174; BC2390109 18.21 Davis v Artingstall (1880) 49 LJ Ch 609 24.16 — v Capel [1959] NZLR 825 19.36 — v Hueber (1923) 31 CLR 583; BC2390113 18.8 Davison v Donaldson (1882) 9 QBD 623 19.9, 19.11 — v Vickery's Motors Ltd (in liq) (1925) 37 CLR 1; BC2500013 5.3, 5.28, 5.40, 5.46 Davjoyda Estates Pty Ltd v National Insurance Co of New Zealand Ltd [1965] NSWR 1257 5.8 Day v Bank of New South Wales (1978) 18 SASR 163 21.13 — v Wells (1861) 30 Beav 220 8.20 De Bussche v Alt (1878) 8 Ch D 286 5.19, 9.1, 9.3, 9.4, 9.11, 9.16, 10.13, 10.14 De Comas v Prost (1865) 3 Moo PCC (NS) 158; 16 ER 59 25.24 De Pedro v Young (1940) 42 WALR 79 17.16 Dean-Willcocks v Nothintoohard Pty Ltd (in liq) (2005) 53 ACSR 587; [2005] NSWSC 357; BC200502186 18.27 Deatons Pty Ltd v Flew (1949) 79 CLR 370; BC4900430 8.12, 24.8 Deaves v CML Fire and General Insurance Company Ltd (1979) 143 CLR 24; BC7900045 22.51, 22.63 Debenham v Mellon (1880) 6 App Cas 24 6.12, 25.38 Debenham's Ltd v Perkins (1925) 133 LT 252 23.70, 23.71, 23.72 Debney v National Bank of Australia (1897) 13 WN (NSW) 183 15.5, 15.12 Debtor, Re a [1927] 2 Ch 367 12.12, 12.18, 12.41, 19.25 Delco Australia Pty Ltd v Darlington Futures Ltd (1986) 43 SASR 519 5.37 Dellafiora v Lester [1962] 3 All ER 393 15.38, 15.49 Delta Construction Co Ltd v Lidstone (1979) 96 DLR (3d) 457 23.91 Demetrios v Gikas Dry Cleaning Industries Pty Ltd (1991) 22 NSWLR 561 19.1

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Denham & Co, Re (1883) 25 Ch D 752 24.43 Dennant v Skinner [1948] 2 All ER 29 8.10, 18.37 Dennis Reed Ltd v Goody [1950] 2 KB 277 15.26, 15.27 Dennis Wilcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 2.27 Dennison v Ace Shohin (Australia) Pty Ltd (1987) ATPR ¶40-793 10.28 Deputy Commissioner of Taxation v Boxshall (1988) 83 ALR 175 3.16, 3.19, 3.20 Derham v Amev Life Assurance Co Ltd (1981) 56 FLR 34 22.18 Devala Provident Gold Mining Company, Re (1883) 22 Ch D 593 22.67, 22.68 Dew v Metropolitan Railway Co (1885) 1 TLR 358 9.8 Di Dio Nominees Pty Ltd v Brian Mark Real Estate Pty Ltd [1992] 2 VR 732 1.21, 16.2, 16.8, 16.24 Diamond v Ranger Unicity Insurance Brokers Ltd (1997) 119 Man R (2d) 99 11.44 Dibbins v Dibbins [1896] 2 Ch 348 5.41 Dicas v Stockley (1836) 7 C & P 587; 173 ER 258 18.22, 18.37, 18.40 Dickenson v Naul (1833) 4 B & Ad 638; 110 ER 596 23.8 Dickinson v Lilwall (1815) 4 Camp 279; 171 ER 89 25.15 Dickson v Reuter's Telegram Co Ltd (1877) 3 CPD 1 23.82, 23.90 Die Elbinger Actien-Gesellschaft v Claye (1873) LR 8 QB 313 23.38 Dillon v Baltic Shipping Co (The ‘Mikhail Lermontov’ (No 2)) (1993, unreported); BC9301730 5.52 Dingle v Hare (1859) 7 CBNS 145; 141 ER 770 8.6 Director of Posts and Telegraphs v Abbott (1974) 7 SASR 540 19.3 Dixon, Ex parte (1876) 4 Ch D 133 1.23 Dixon v Ewart (1817) 3 Mer 322; 36 ER 123 25.21 — v Hamond (1819) 2 B & Ald 310; 106 ER 380 13.23 — v Muckleston (1872) LR 8 Ch App 155 21.20, 22.15 — v Stansfield (1850) 10 CB 398; 138 ER 160 18.34 — v Winch [1900] 1 Ch 736 22.63 DMK Real Estate Pty Ltd v Lilliebridge (1992) 108 FLR 64 15.89

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Dobler v Halverson (2007) 70 NSWLR 151; [2007] NSWCA 335; BC200710215 11.26 Doe d Mann v Walters (1830) 10 B & C 626; 109 ER 583 5.41 Dollars & Sense Finance Ltd v Nathan [2008] 2 NZLR 557; [2008] NZSC 20 22.13, 22.15, 22.44, 22.58, 22.59 Dolphin v Harrison, San Miguel Pty Ltd (1911) 13 CLR 271; BC1100023 4.8 Dominion Metals Pty Ltd v Shemmessian (1993, unreported); BC9301601 8.31, 20.57 Donald v Suckling (1866) LR 1 QB 585 18.37 Donaldson v Noble (1888) 14 VLR 1021 7.5, 8.10, 8.15 Donellan v Watson (1990) 21 NSWLR 335 8.31, 20.58, 20.61 Donlan v Commonwealth of Australia (1953) 54 SR (NSW) 67 25.41 Donowa v Webster (1929) 29 SR (NSW) 318 1.20, 15.65 Donsland Ltd v Van Hoogstraten [2002] PNLR 26; [2002] EWCA Civ 253 25.1 Dorotea Pty Ltd v Christos Doufas Nominees Pty Ltd [1986] 2 Qd R 91 22.35 D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12; BC200500919 8.31, 20.58 Doughty-Pratt Group Ltd v Perry Castle [1995] 2 NZLR 398 23.28 Douglas v Steele, 816 P 2d 586 (Okla App 1991) 1.50 Dover, Re (1981) 6 ACLR 307 1.44 Dovewell Pty Ltd v Manufacturers Mutual Insurance Ltd (1986) 4 ANZ Ins Cas ¶60-726 12.47 Downie v Kenny [1986] ANZ ConvR 494 15.57 Downs Distributing Co Pty Ltd v Associated Blue Star Stores Pty Ltd (in liq) (1948) 76 CLR 463; BC4800130 21.28 Downsview Ltd v First City Corporation Ltd [1993] AC 295 1.44 Dowson's and Jenkins's Contract, Re [1904] 2 Ch 219 7.7, 7.9 Doyle v Blake (1804) 2 Sch & Lef 231 3.31 — v Mount Kidston Mining and Exploration Pty Ltd [1984] 2 Qd R 386 15.20, 16.1, 16.2, 16.10 Drabble Brothers, Re [1930] 2 Ch 211 22.53 Drakeford v Piercy (1866) 14 LT 403 8.7 Drew v Nunn (1879) 4 QBD 661 19.20, 25.19, 25.21, 25.41, 25.44 Drewery v Ware-Lane [1960] 3 All ER 529 15.27

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D'Silva v Lister House Development Ltd [1971] Ch 17 8.27 Du Jardin v Beadman Brothers Ltd [1952] 2 QB 712 21.25 Dubai Aluminium Co Ltd v Salaam [2003] 2 AC 366; [2002] UKHL 48 22.7, 22.13, 22.15 Duchess of Argyll v Beuselinck [1972] 2 Lloyd's Rep 172 11.32 Dudley Buildings Pty Ltd v Rose (1933) 49 CLR 84; BC3300024 5.13 Dudley (deceased), Re Estate of (2013) 115 SASR 328; [2013] SASC 22; BC201309027 3.17, 7.7 Dueck v Manitoba Mennonite Mutual Insurance Co (1992) 80 Man R (2d) 173 11.44 Duet Marketing Corp v Spetifore (1986) 32 BLR 148 6.9 Duke of Norfolk v Worthy (1808) 1 Camp 337; 170 ER 977 23.46 Duncan v Hill (1873) LR 8 Ex 242 18.15 — v McDonald [1997] 3 NZLR 669 22.57 Dundalk AFC Interim Co Ltd v FAI National League [2001] 1 IR 434 3.19 Dunlop Pneumatic Tyre Co Ltd v Selfridge and Co Ltd [1915] AC 847 19.6, 19.29, 19.34 Dunlop & Sons v De Murrietta & Co (1886) 3 TLR 166 9.8 Dunphy v Sleepyhead Manufacturing Co Ltd [2007] 3 NZLR 602; [2007] NZCA 241 1.47 Durham v Asser (1968) 67 DLR (2d) 574 21.29 Dutton v Marsh (1871) LR 6 QB 361 23.26 Dwyer v Herman (1881) 2 LR (NSW) L 280 25.23, 25.38 Dyson v Peat [1917] 1 Ch 99 18.12 Dyster v Randall & Sons [1926] Ch 932 19.44, 19.45

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E Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Table of Cases > Table of Cases

E Please click on the link below to download the entire chapter. E Bailey & Co Ltd v Balholm Securities Ltd [1973] 2 Lloyd's Rep 404 2.9 E P Nelson & Co v Rolfe [1950] 1 KB 139 15.53, 25.32 E v English Province of Our Lady of Charity [2013] QB 722; [2012] EWCA Civ 938 22.15 Eagle Star Insurance Co Ltd v National Westminster Finance Australia Ltd (1985) 58 ALR 165 1.34, 11.46, 22.29 Earl of Sheffield v London and Joint Stock Bank (1888) 13 App Cas 333 21.9 Eastern Construction Co Ltd v National Trust Co Ltd & Schmidt [1914] AC 197 5.8 Eastern Counties Railway Co v Broom (1851) 6 Ex 314; 115 ER 562 5.18 Eastern Distributors Ltd v Goldring [1957] 2 QB 600 20.1, 21.2, 21.17, 21.18 Easyfind (NSW) Pty Ltd v Paterson (1987) 11 NSWLR 98 20.59 Eaves, Re [1939] 4 All ER 260 5.28 Eccles v Bryant and Pollock [1948] Ch 93 8.27 Ecroyd v Davis (1872) 3 VR (L) 228 8.21 Edebohls v Foy [1917] VLR 573 16.18 Eden Energy Ltd v Drivetrain USA Inc (2012) 90 ACSR 191; [2012] WASC 192; BC201204013 20.74 Edenwest Ltd v CMS Cameron McKenna [2013] BCC 152; [2012] EWHC 1258 (Ch) 1.45 Edgell v Day (1865) LR 1 CP 80 12.3, 23.46 Edmunds v Bushell & Jones (1865) 1 QB 97 20.51 Edwards, Ex parte (1884) 13 QBD 747 23.51 Edwards v Brookes (Milk) Ltd [1963] 3 All ER 62 22.67, 22.68, 22.70, 22.72 — v Massey [1947] St R Qd 226 15.52, 15.85 — v Sheppard [1946] St R Qd 159 15.52, 15.85 Egan Lawson Ltd v Standard Life Assurance Company [2001] 1 EGLR 27 16.8

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Egan v Ross (1928) 29 SR (NSW) 382 8.7, 19.5, 20.28, 23.50 Egg Marketing Board for New South Wales v Graham [1962] NSWR 441 24.14 Egger v Viscount Chelmsford [1965] 1 QB 248 24.9 Egyptian International Foreign Trade Co v Soplex Wholesale Supplies Ltd (The ‘Raffaella’) [1985] 2 Lloyd's Rep 36  20.6, 20.8, 20.19, 20.20, 20.32, 20.38 Ehrensperger v Anderson (1848) 3 Ex 148; 154 ER 793 13.10 Eisentrager v Lyneham [1952] St R Qd 232 18.12 El Ajou v Dollar Land Holdings plc [1994] 2 All ER 685 22.50, 22.55 Elder Smith Goldsbrough Mort Ltd v McBride [1976] 2 NSWLR 631 19.28, 23.8 Elderkin v Merrill Lynch, Royal Securities Ltd (1977) 80 DLR (3d) 313 11.23 Elektronska Industrija Oour TVA v Transped Oour Kintinetalna Spedicna [1986] 1 Lloyd's Rep 49 2.2 Elilade Pty Ltd v Nonpareil Pty Ltd (2002) 124 FCR 1; [2002] FCA 909; BC200204221 11.43, 11.54 Ellis v Goulton [1893] 1 QB 350 2.16, 23.46 — v Mihelis, 60 Cal 2d 206 (1963) 4.22 Elpis Maritime Co Limited v Marti Chartering Co Inc [1992] 1 AC 21 23.28 Emanuel Management Pty Ltd (in liq) v Foster's Brewing Group Ltd (2003) 178 FLR 1; [2003] QSC 205; BC200303844 12.12 Emmerson v Heelis (1809) 2 Taunt 38; 127 ER 989 8.19 Emmons Mount Gambier Pty Ltd v Specialist Solicitors Network Pty Ltd [2005] NSWCA 117; BC200502530 16.13, 16.18 English and Scottish Insurance Company, Re (1870) 23 LT 685 25.12 English, Scottish and Australian Chartered Bank v Barker (1880) 1 LR (NSW) L 192 18.15 English v English [2010] EWHC 2058 (Ch) 5.15 — v Gibbs (1888) 9 LR (NSW) L 455 23.46 Epps v Rothnie [1945] KB 562 19.37 Equitas Ltd v Horace Holman & Co Ltd [2007] Lloyd's Rep IR 567; [2007] EWHC 903 (Comm) 13.2 Equiticorp Finance Ltd (in liq) v Bank of New Zealand (1993) 32 NSWLR 50 7.3, 8.1, 8.42, 20.5, 20.14 Equiticorp Financial Services Ltd v Equiticorp Financial Services Ltd (1992) 29 NSWLR 260 8.42

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Ercanbrack v Crandall-Walker Motor Co, 550 P 2d 723 5.19 Erikson v Carr (1945) 46 SR (NSW) 9 1.1, 1.2, 1.18, 1.34, 1.48, 2.21, 25.47 Errichetti Holdings Pty Ltd v Western Plaza Hotel Corporation Pty Ltd (2006) 201 FLR 192; [2006] WASC 113; BC200605324 20.74 Esanda Finance Corporation Ltd v Alvaro (1998, unreported); BC9807022 8.31, 20.57 — v Spence Financial Group Pty Ltd [2006] WASC 177; BC200606626 1.31 Essington Investments Pty Ltd v Regency Property Pty Ltd [2004] NSWCA 375; BC200406901 20.25, 20.33, 21.3 Estate Realties Ltd v Wignall [1992] 2 NZLR 615 12.3 Établissement Biret Et Cie SA v Yukiteru Kaiun KK and Nissui Shipping Corporation (The ‘Sun Happiness’) [1984] 1 Lloyd's Rep 381 23.24, 23.43 Eurest (Aust) Catering & Services Pty Ltd v International Foods Pty Ltd (2000) 35 ACSR 352 2.21, 2.26 Euroafrica Shipping Lines Co Ltd v Zegula Polska SA [2004] 2 BCLC 97; [2004] EWHC 385 (Comm) 25.1 European Asian Bank AG v Punjab and Sind Bank [1983] 2 All ER 508 19.18 European Bank, Re (1870) 5 LR 5 Ch App 358 22.57 Evagora v eBay Australia and New Zealand Pty Ltd [2001] VCAT 49 1.29, 2.24 Evans v McLean (No 2) (1985) 9 ACLR 796 18.21 Everett v Hogg, Robinson & Gardner Mountain (Insurance) Ltd [1973] 2 Lloyd's Rep 217 10.31 Excel Securities plc v Masood [2010] Lloyd's Rep PN 165 23.84, 23.94 Excess Life Assurance Co Ltd v Firemen's Insurance Co of Newark New Jersey [1982] 2 Lloyd's Rep 599 1.11, 12.47 Explora Group plc v Hesco Bastion Ltd [2005] EWCA Civ 646 15.55 Expo International Pty Ltd v Chant [1979] 2 NSWLR 820 1.44

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F Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Table of Cases > Table of Cases

F Please click on the link below to download the entire chapter. F & C Alternative Investments (Holdings) Ltd v Barthelemy (No 2) [2012] Ch 613; [2011] EWHC 2807 1.5 Fabricius, Re (1989) 91 ACTR 1 12.39 Fabry v Federal Commissioner of Taxation (2001) 48 ATR 130; [2001] FCA 1431; BC200106247 4.5 FAI Insurances Ltd v Pioneer Concrete Services Ltd (1987) 15 NSWLR 552 21.20 FAI Traders Insurance Company Ltd v ANZ McCaughan Securities Ltd (1990) 3 ACSR 279 8.16 Fairlie v Fenton (1870) LR 5 Ex 169 23.8 Fairmede Pty Ltd v Von Pein [2004] ANZ ConvR 382; [2004] QSC 220; BC200404842 7.13, 8.5 Fairworld Holdings Pty Ltd v Burrup Fertilisers Pty Ltd (recs and mgrs apptd) (No 3) [2012] WASC 190; BC201204012 20.74 Famatina Development Corporation Ltd, Re [1914] 2 Ch 271 18.13 Family Food Court (a firm) v Seah Boon Lock [2008] 4 SLR(R) 272; [2008] SGCA 31 19.31, 23.9 Fanhaven Pty Ltd v Bain Dawes Northern Pty Ltd [1982] 2 NSWLR 57 11.42, 11.43, 11.46 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22; BC200703851 22.55, 24.6 Farebrother v Simmons (1822) 5 B & Ald 333; 106 ER 1213 3.7, 8.22 Farquharson Bros & Co v C King & Co [1902] AC 325 20.7, 20.31, 21.1, 21.2, 21.3 Farrell v Bannister (1952) 52 SR (NSW) 73 17.2 — v National Mutual Life Association of Australasia Ltd [1991] 2 Qd R 624 22.26, 22.51 Farrow Mortgage Services Pty Ltd (in liq) v Peto [1997] ANZ ConvR 226; BC9603815 22.44 Favermead Ltd v FPD Savills Ltd [2005] BPIR 715; [2005] EWHC 626 (Ch) 1]6.2 Fawcett v Star Car Sales Ltd [1960] NZLR 406 19.36, 19.37 — v Whitehouse (1829) 1 Russ & M 132; 39 ER 51 12.7 FDIC v Providence College 115 F 3d 136 (USCA 2d Cir 1997) 20.45

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Feagles v Sullivan, 32 Pa D&C 47 (Pa Com Pl 1938) 3.3 Featherstonhaugh v Johnston (1818) 8 Taunt 237; 129 ER 374 24.14 Federal Commissioner of Taxation v Card (1963) 109 CLR 177 1.45 Felthouse v Bindley (1862) CBNS 869; 142 ER 1037 19.24 Ferguson v Aberdeen Parish Council [1916] SC 715 5.45 — v Federal Commissioner of Taxation (1979) 25 ALR 307 21.30 — v Wilson (1866) LR 2 Ch 77 1.41 Ferryways NV v Associated British Ports [2008] 1 Lloyd's Rep 639; [2008] EWHC 225 19.37 Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (1998) 28 ACSR 688; [1998] NSWSC 413; BC9804582 10.13 FHR European Ventures LLP v Mankarious [2013] 3 All ER 29; [2013] EWCA Civ 17 12.16, 12.17 Fiedler v South Mount Lyell Mining Co (1899) 25 VLR 442 7.7 Field v R [2012] 3 NZLR 1; [2011] NZSC 129 12.12 — v Shoalhaven Transport Pty Ltd [1970] 3 NSWR 96 4.1, 4.4, 4.5, 4.21 Fine's Flowers Ltd v General Accident Assurance Co of Canada (1977) 81 DLR (3d) 139 11.47 Finzel, Berry & Co v Eastcheap Dried Fruit Co [1962] 1 Lloyd's Rep 370 19.34 Firbank's Executors v Humphreys (1886) 18 QBD 54 23.80, 23.88, 23.91 First Energy (UK) Ltd v Hungarian International Bank Ltd [1993] 2 Lloyd's Rep 194 8.38, 20.34 First Sport Ltd v Barclays Bank plc [1993] 3 All ER 789 20.32 Firth v Staines Sinclair v Hudson (1995) 9 BPR 16,259; BC9505359 5.7 Fischer v Parry & Beveridge Pty Ltd [1963] VR 97 8.7, 23.48 Fish v Kempton (1849) 7 CB 687; 137 ER 272 19.14, 19.32, 21.5 Fisher v Smith (1878) 4 App Cas 1 18.22, 18.46 Fitchett Brown and Associates Pty Ltd v Stewart-Day [1984] 2 NSWLR 361 1.8 Fitzgerald v Dressler (1859) 7 CBNS 374 1.14 — v Metcalfe [1917] NZLR 486 11.13 Fitzmaurice v Bayley (1856) 6 El & Bl 868; 119 ER 1087 5.22 — v — (1860) 9 HL Cas 78; 11 ER 657 5.22, 5.26, 5.53

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Fitzroy Bessenger Steel etc Co Ltd, Re (1884) 50 LT 144 22.56 Fitzsimons v Duncan & Kemp & Co [1908] 2 IR 483 24.9 Fitzwood Pty Ltd v Unique Goal Pty Ltd (in liq) (2001) 188 ALR 566; [2001] FCA 1628; BC200107154 10.8, 15.34 Fleet v Murton (1871) LR 7 QB 126 23.15, 23.43 Fleming v Bank of New Zealand [1900] AC 577 5.46 Flexible Manufacturing Systems Pty Ltd v Fernandez (2004) 22 ACLC 47; [2003] FCA 1491; BC200307841 18.12 Flexirent Capital Pty Ltd v EBS Consulting Pty Ltd (2007) 14 ANZ Ins Cas ¶061-732; [2007] VSC 158; BC200703781 20.22, 20.42 Fliway-AFA International Pty Ltd v Australian Trade Commission (1992) 39 FCR 446; BC9203861 1.5, 2.5, 2.21 FNCB Ltd v Barnet Devanney (Harrow) Ltd [1999] Lloyd's Rep IR 459 11.43 Foley v Hill (1848) 2 HL Cas 28; 9 ER 1002 1.24, 13.7 Folkes v King [1923] 1 KB 282 21.25 Food Corporation of India v China Pacific [1981] QB 403 6.5 Foran v Wight (1989) 168 CLR 385 20.12 Ford Excavations Pty Ltd v Do Carmo [1981] 2 NSWLR 253 22.31, 22.49 Ford v Wisconsin Real Estate Examining Board 179 NW 2d 786 (Wis 1970) 11.3 Foreman v Great Western Railway Co (1878) 38 LT 851 3.5 Forestview Nominees Pty Ltd v Perron Investments Pty Ltd (1999) 162 ALR 482; BC9901615 8.25, 22.45 Forman & Co Pty Ltd v The Ship Liddesdale [1900] AC 190 5.30 Format Industries Security Printers Ltd v Mosden [1975] 1 Lloyd's Rep 37 23.41 Formby Bros v Formby (1910) 102 LT 116 19.35, 19.36, 19.37 Forsikringsaktieselskapet Vesta v Butcher [1986] 2 All ER 488 10.3, 10.5 — v — [1989] 1 AC 852 10.3, 10.5 Forth v Simpson (1849) 13 QB 680; 116 ER 1423 18.38 Fortuity Pty Ltd v Barcza (1995) 32 IPR 517; BC9504180 12.3 Foster v Bates (1843) 12 M & W 226; 152 ER 1180 5.10 — v Pearson (1835) 1 CM & R 849; 149 ER 1324 21.7

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Foundation Co of Ontario Ltd v Bartram [1947] 4 DLR 801 23.51 Fowler v Bratt [1950] 2 KB 96 15.28 — v Holling (1872) LR 7 QB 616 1.25 Fox v Martin (1895) 64 LJ Ch 473 21.1, 21.3 Foxcraft v Wood (1828) 4 Russ 487; 38 ER 888 18.11 Foxtons Ltd v Pelkey Bicknell [2008] 2 EGLR 23; [2008] EWCA Civ 419 16.3, 16.4 — v Thesleff [2005] 2 EGLR 29; [2005] EWCA Civ 514 15.32, 15.33 Franco-Canadian Mortgage Co v Greig and Thirlaway (1917) 38 DLR 109 (SCC) 23.51 Franklyn v Lamond (1847) 4 CB 637 23.43 Fraser Henleins Pty Ltd v Cody (1945) 70 CLR 100; BC4500034 22.70 Fraser v B N Furman (Productions) Ltd [1967] 1 WLR 898 1.38, 10.31 — v Equitorial Shipping Co Ltd and Equitorial Lines Ltd (The ‘Ijaola’) [1979] 1 Lloyd's Rep 103 23.41 Fraser-Ramsay (New Zealand) (Ltd) v De Renzy (1912) 32 NZLR 553 1.5, 2.3, 2.5 Fray v Voules (1859) 1 El & El 839; 120 ER 1125 11.1, 20.58 Fred Drughorn Ltd v Rederiaktiebolaget Transatlantic [1919] AC 203 19.34, 19.35, 19.37, 19.38 Freeman and Lockyer (a firm) v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 7.3, 8.17, 8.42, 19.3, 19.29, 20.7, 20.11, 20.14, 20.16, 20.23, 20.26, 20.64, 20.65, 20.66, 20.68, 20.71, 20.73, 20.74 Freeman v Cooke (1848) 2 Exch 654; 154 ER 652 20.5 — v Rosher (1849) 13 QB 780; 116 ER 1462 5.18, 5.38 French v Howie [1906] 2 KB 674 23.70 Fricker v Parton [2004] ACTSC 94; BC200406406 7.15 Fried v National Australia Bank Ltd (2001) 111 FCR 322; [2001] FCA 907; BC200103909 5.20 Friend v Young [1897] 2 Ch 421 25.19 Frith v Frith [1906] AC 254 15.13, 25.24, 25.26 Fry v Smellie [1912] 3 KB 282 20.7, 21.19 — v Tapson (1884) 28 Ch D 268 3.31

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Fuentes v Montis (1868) LR 3 CP 268 21.4, 21.17, 21.20 Fuller v Fasig-Tipton Co, 587 F 2d 103 19.13 — v Glyn, Mills, Currie & Co [1914] 2 KB 168 20.16, 21.15 Fullwood v Hurley [1928] 1 KB 498 10.15, 12.9, 12.41, 12.47 Fund of New Zealand Nominees Ltd v Campbell [1990] ANZ ConvR 262 10.3 Fung Kai Sun v Chan Fui Hing [1951] AC 489 5.15 Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500; BC8601387 5.37 Futuretronics International Pty Ltd v Gadzhis [1992] 2 VR 217 8.19 Fyffes Group Ltd v Templeman [2000] 2 Lloyd's Rep 643 12.14, 12.19

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G Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Table of Cases > Table of Cases

G Please click on the link below to download the entire chapter. G v G [1970] 2 QB 643 3.3 Gaby v Driver (1828) 2 Y & J 549; 148 ER 1036 2.16 Gadd v Houghton (1876) 1 Ex D 357 23.11, 23.14, 23.18, 23.19, 23.21, 23.22, 23.39 Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1987) 163 CLR 236; BC8701790  21.20 Gamvrogiannis v Blackshaw (2000) NSW ConvR ¶55-940; [2000] NSWSC 314; BC200001831 8.27 Garbett v Rosemen Investments Pty Ltd (2003) V ConvR ¶54-672; [2002] VSC 575; BC200208257 1.27 Garcia v National Australia Bank Ltd (1998) 194 CLR 395; BC9803588 22.44 Gardiner v Fiannaca [1967] WAR 35 17.16 — v Grigg (1938) 38 SR (NSW) 524 5.55, 5.56, 7.26, 8.5, 8.6, 8.23, 8.24 — v Heading [1928] 2 KB 284 19.29, 23.56 Garnac Grain Co Inc v H M F Faure & Fairclough Ltd [1965] 1 All ER 47n 22.23 — v — [1968] AC 1130 1.6, 4.5, 22.24 Gaskell v Gosling [1896] 1 QB 669 1.44, 1.45 Gaussen v Morton (1830) 10 B & C 731; 109 ER 622 25.23, 25.24 Geia v Palm Island Aboriginal Council [2001] 1 Qd R 245; [1999] QCA 389; BC9905981 25.21 Geissler v Accro Motors Pty Ltd (1956) 73 WN (NSW) 31 7.4, 19.6, 20.7 General Accident Fire & Life Assurance Corporation v Tanter (The ‘Zephyr’) [1985] 2 Lloyd's Rep 529 24.23 General Distributors Ltd v Paramotors Ltd [1962] SASR 1 20.3, 20.31, 21.15, 21.18 General Legal Council Ex parte Whitter v Frankson [2006] 1 WLR 2803; [2006] UKPC 42 3.20, 3.27 General Reinsurance Corp v Forsakringsakiebolaget Fennia Patria [1983] QB 856 8.17 Geniki Investments International Ltd v Ellis Stockbrokers Ltd [2008] 1 BCLC 662; [2008] EWHC 549 (QB) 5.31

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Geoffrey W Hill & Associates (Insurance Brokers) Pty Ltd v Squash Centre (Allawah North) Pty Ltd (1990) 6 ANZ Ins Cas ¶61-012; BC9001935 11.25, 11.43, 19.18 George Moundreas & Co SA v Navimpex Centrala Navala [1985] 2 Lloyd's Rep 515 15.58 George T Collings (Aust) Pty Ltd v H F Stevenson (Aust) Pty Ltd [1992] ANZ ConvR 195; BC9003881 15.49, 15.52 George Trollope & Sons v Caplan [1936] 2 KB 382 7.25 George v Pottinger [1969] Qd R 101 8.28 — v Rockett (1990) 170 CLR 104; BC9002921 20.74 George Whitechurch Ltd v Cavanagh [1902] AC 117 8.38 Georges v Seaborn International Pty Ltd (2012) 288 ALR 240; [2012] FCA 75; BC201200549 2.12, 13.19 Georgieff v Athans (1981) 26 SASR 412 11.13, 11.14, 11.27, 11.28, 11.34, 12.40, 15.67 Gerahty v Baines & Co Ltd (1903) 19 TLR 554 25.32 Gerard v McCormick, 29 NE 115 19.13 Gerlach v Pearson [1950] VLR 321 15.23, 15.36, 15.49, 16.2 Gewa Chartering BV v Remco Shipping Lines Ltd (The ‘Remco’) [1984] 2 Lloyd's Rep 205 23.6 Gheko Developments Pty Ltd v Azzopardi [2005] QCA 283; BC200505782 8.8 Gibbon v Pease [1905] 1 KB 810 13.3 Gibbons v Wright (1954) 91 CLR 423 1.30, 3.2, 25.19 Gibbs Holdings Pty Ltd v Mercantile Mutual Insurance (Australia) Ltd [2002] 1 Qd R 17; [2000] QCA 524; BC200008022 11.42 Gibson Motorsport Merchandise Pty Ltd v Forbes (2006) 149 FCR 569; [2006] FCAFC 44; BC200601681 10.7 Gibson v Jeyes (1801) 6 Ves 266; 31 ER 1044 12.32 Gilchrist v Benjamin (1908) 25 WN (NSW) 30 23.46, 23.47 Gilford v McLean (1929) 29 SR (NSW) 336 15.37 Gillett v Peppercorne (1840) 3 Beav 78; 49 ER 31 10.9 Giltrap City Ltd v Commerce Commission [2004] 1 NZLR 608 7.3, 8.31 Given v Pryor (1979) 39 FLR 437 24.29 Gladman Commercial Properties v Fisher Hargreaves Proctor [2013] EWHC 25 (Ch) 24.8 Gladstone v Catena [1948] 2 DLR 483 15.23

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Gledhill v Bentley Designs (UK) Ltd [2011] 1 Lloyd's Rep 270; [2010] EWHC 1965 (QB) 25.17 Glentree Estates Ltd v Favermead Ltd [2011] 1 P & CR DG20; [2010] EWCA Civ 1473 16.8 — v Holbeton Ltd [2011] EWCA Civ 755 16.22 Glover v Langford (1892) 8 TLR 628 23.39 Goddard Elliott (a firm) v Fritsch [2012] VSC 87; BC201201151 3.2, 11.32 Gokal Chand-Jagan Nath v Nand Ram Das-Atma Ram [1939] AC 106 13.8 Gokora Pty Ltd v Montgomery Jordan and Stevenson Pty Ltd (1986) 4 ANZ Ins Cas ¶60-727 10.28, 11.46 Goldberg v Jenkins & Law (1889) 15 VLR 36 20.62 Golding v Royal London Auxiliary Insurance Co Ltd (1914) 30 TLR 350 22.51 — v Vella (2001) 10 BPR 18,919; [2001] NSWSC 567; BC200103694 7.15 Goldsbro v Walker [1993] 1 NZLR 394 24.30, 24.32 Goldschmidt v MacDonald (1909) 9 SR (NSW) 693 23.7, 23.11, 23.15, 23.18, 23.19, 23.39 Gomba Holdings Ltd v Minories Finance Ltd [1989] 1 All ER 261 1.45, 13.5 Gonsalves v Debreczeni (1998) 9 BPR 16,689; BC9806554 1.28, 12.24, 12.55, 12.57 Goodall v Australian Freehold Banking Corp (1890) 16 VLR 29 21.8 Goode v Harrison (1821) 5 B & Ald 147; 106 ER 1147 3.5 Goodey and Southwold Trawlers Ltd v Garriock, Mason and Millgate [1972] 2 Lloyd's Rep 369 8.2, 23.46, 23.76 Goodison Thresher Co v Doyle (1925) 57 OLR 300 5.49 Goodwin v Brind (1868) LR 5 CP 299 7.16 Gordon v Treadwell Stacey Smith [1996] 3 NZLR 281 24.1 Gore Mutual Insurance Co v Barton, Black & Robertson Ltd (1979) 104 DLR (3d) 252 10.1, 11.46 Gorman v H W Hodgetts & Co [1932] SASR 394 18.37, 20.41 — v Norton (1887) 8 LR (NSW) L 479 23.30 Gosling v Gaskell [1897] AC 575 1.44, 1.45, 3.4, 23.80, 25.19 Gould v South Eastern and Chatham Railway Co [1920] 2 KB 186 19.17 Gouldham v R [1963] WAR 7 14.17 Goulet v Clarkson [1949] 1 DLR 847 22.20

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Gowers v Lloyds and National Provincial Foreign Bank Ltd [1938] 1 All ER 766 23.51, 23.82 Graeme Webb Investments Pty Ltd v St George Partnership Banking Ltd (2001) 38 ACSR 282; [2001] NSWCA 93; BC200101635 1.44, 25.19 Graham v Gibson (1882) 8 VLR (Eq) 43 3.31 Grahame v Commissioner for Railways (1946) 46 SR (NSW) 430 3.18, 3.20, 3.21, 3.22, 3.25 Gramophone & Typewriter Ltd v Stanley [1908] 2 KB 89 2.26, 2.27 Gran Gelato Ltd v Richcliff (Group) Ltd [1992] Ch 560 24.17 Grant v Gold Exploration and Development Syndicate Ltd [1900] 1 QB 233 12.14, 12.18, 19.25, 19.26, 22.56 — v Norway (1851) 10 CB 665; 138 ER 263 7.4, 19.6, 20.47 ‘Gratitudine’, The (1801) 3 C Rob 240; 165 ER 450 6.11 Gray v Dalgety & Co Ltd (1916) 21 CLR 509 4.25, 15.43 — v Haig (1855) 20 Beav 219; 52 ER 587 13.1 — v Johnston (1868) LR 3 HL 1 10.9, 21.7 — v Pearson (1870) LR 5 CP 568 23.5, 23.8 Graycombe Associates Ltd v Northern Stag Industries Ltd (1976) 73 DLR (3d) 241 15.54 Great Northern Railway Co v Swaffield (1874) LR 9 Ex 132 6.4, 6.10 Great Western Insurance Co of New York v Cunliffe (1874) LR 9 Ch App 525 12.13 Great Western Railway Company v London and County Banking Company Ltd [1901] AC 414 21.11, 24.14 Greatorex & Co v Shackle [1895] 2 QB 249 16.22 Greaves v Baynham [1975] 3 All ER 99 11.27 Green v Bartlett (1863) 8 LT 503 16.6 — v H & R Block Inc, 735 A 2d 1039 4.13 — v Lincoln Knitting Mills Proprietary (1925) 25 SR (NSW) 145 15.2 Greenwood v Harvey [1965] NSWR 1489 11.21, 15.69, 15.70 — v Martins Bank Ltd [1932] 1 KB 371 5.15 — v — [1933] AC 51 5.15 Greer v Downs Supply Company [1927] 2 KB 28 19.39, 19.40, 20.43, 21.14, 21.31

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Gribbon v Lutton [2002] 2 WLR 842; [2001] EWCA Civ 1956 2.16, 2.17 Grice v Kenrick (1870) LR 5 QB 340 23.8 Griffin v Clark (1940) 40 SR (NSW) 409 25.23 — v Weatherby (1868) 18 LT 881 23.54 Griffiths Cycle Corporation Ltd v Humber & Co Ltd [1899] 2 QB 414 4.28 Griffiths Hughes Pty Ltd v Federal Commissioner of Taxation (1951) 84 CLR 13 2.27 Griffiths v Durack (1885) 2 WN (NSW) 28 15.53 — v Studebakers Ltd [1924] 1 KB 102 22.48 — v Williams (1787) 1 Term Rep 710; 99 ER 1335 9.3 Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296; [2012] FCAFC 6; BC201200621 12.12, 12.17 Grime v Bartholomew [1972] 2 NSWLR 827 19.28, 19.29, 19.30, 23.42 Grindell v Bass [1920] 2 Ch 487 1.40, 4.28 Grindley v Barker (1798) 1 B & P 229; 126 ER 875 4.35 Grinham v Tabro Meats Pty Ltd [2012] VSC 491; BC201208113 11.26 Grogan v Orr [2001] NSWCA 114; BC200104437 23.54 — v Smith (1890) 7 TLR 132 15.23 Groom v Crocker [1939] 1 KB 194 10.3, 10.5 Grose v Bank of New South Wales (1910) 11 SR (NSW) 24 5.46 Ground Gilbey Ltd v Jardine Lloyd Thompson UK Ltd [2011] PNLR 15; [2011] EWHC 124 (Comm) 11.41, 11.43 Grove v Dubois (1786) 1 Term Rep 112; 99 ER 1002 1.15 Grover & Grover Ltd v Mathews [1910] 2 KB 401 5.45 Grummitt v Natalisio [1968] VR 156 1.40 Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641; BC3790114 20.53 Gu v Du [2011] NZCA 577 25.10 Guazzini v Paterson (1918) 18 SR (NSW) 275 3.31 Guerin v The Queen (1984) 13 DLR (4th) 321 1.5, 1.51

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Gunns v Par Insurance Brokers [1997] 1 Lloyd's Rep 173 11.44 Gurr v Cuthbert (1843) 12 LJ (Ex) 309 18.37 Guthrie v Armstrong (1822) 5 B & Ald 628; 106 ER 1320 4.32 Gutman v McFall (2004) 61 NSWLR 599; [2004] NSWCA 378; BC200407028 22.41 Gwembe Valley Development Co Ltd v Koshy (No 3) [2004] 1 BCLC 131; [2003] EWCA Civ 1048 12.16 Gwilliam v Twist [1895] 2 QB 84 6.5

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H Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Table of Cases > Table of Cases

H Please click on the link below to download the entire chapter. H G & R Nominees Pty Ltd v Fava [1997] 2 VR 368; BC9503297 22.44 H J Lyons & Sando Ltd v Houlson [1963] SASR 29 23.3, 23.13, 23.27 H O Brandt & Co v H N Morris & Co Ltd [1917] 2 KB 784 23.11, 23.21, 23.23, 23.39 H P Etlin Co Ltd v Asselstyne (1962) 34 DLR (2d) 191 23.20 H W Liebig & Co v Leading Investments Ltd (1986) 25 DLR (4th) 161 15.24, 15.26, 15.27, 15.28, 15.30, 15.34, 15.44, 15.48, 15.62, 15.63, 15.78, 15.81 Habton Farms (an unlimited company) v Nimmo [2004] QB 1; [2003] EWCA Civ 68 23.92 Hagedorn v Oliverson (1814) 2 M & S 485; 105 ER 461 5.23, 5.45 Haines v Busk (1814) 5 Taunt 521; 128 ER 793 15.4 Hal H Paradise Ltd v Apostolic Trustees of the Friars Minor (1966) 55 DLR (2d) 671 19.39 Halbot v Lens [1901] 1 Ch 344 23.84, 23.90 Halbronn v International Horse Agency and Exchange Ltd [1903] 1 KB 270 18.13 Halifax Mortgage Services Ltd v Stepsky [1995] 4 All ER 656 22.55 Hall v Paine, 112 NE 153 12.22 — v Richards (1961) 108 CLR 84; BC6100470 18.21 Hallani v Hallani (2013) 16 BPR 31,203; [2013] NSWSC 91; BC201301047 11.5, 25.38, 26.10 Haller v Worman (1861) 3 LT 741 22.67 Halligan v Mitchell [1941] VLR 240 3.20, 5.28 Halton International Inc v Guernroy [2006] EWCA Civ 801 12.16 Hambro v Burnand [1904] 2 KB 10 20.28, 20.48, 22.46 Hamer v Sharp (1874) LR 19 Eq 108 7.13 Hamilton Panel Works Ltd v Thomas [1963] NZLR 771 5.19

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Hamlyn v John Houston & Co [1903] 1 KB 81 22.10 — v Wood [1891] 2 QB 488 25.12 Hammond v Schofield [1891] 1 QB 453 23.72, 23.79 Hammonds v Barclay (1802) 2 East 227 18.21 Hampshire Land Co Ltd, Re [1896] 2 Ch 743 22.57 Hanflex Pty Ltd v N S Hope & Associates [1990] 2 Qd R 219 10.3, 10.5 Hanna v Imperial Life Assurance Co of Canada [2008] ICR 578; [2007] UKPC 29 2.19 Hannan's Empress Gold Mining and Development Co, Re (‘Carmichael's case’) [1896] 2 Ch 643 25.25 Hansen v Marco Engineering (Aust) Pty Ltd [1948] VLR 198 1.40, 20.58 Hanson v Waller [1901] 1 QB 390 8.12 Harcourts Cox Coxon v Lunam [1997] ANZ ConvR 392 16.13, 16.14, 16.20 Harcourts Group Ltd v McKenzie [1994] ANZ ConvR 273 16.16 Hardie v Brown (1886) 7 LR (NSW) L 303 15.52 Harding Maughan Hambly Ltd v Cie Européene de Courtage d'Assurances et de Réassurances SA [2000] 1 Lloyd's Rep 316; [2000] 1 All ER (Comm) 225 16.3, 16.21 Hardy, Re (1901) 19 NZLR 845 18.32 Hardy v Cotter (1881) 7 VLR (E) 151 13.23 Harela v Powell (1998) 163 DLR (4th) 365 24.24, 24.25 Harington v Hogart (1830) 1 B & Ad 577 2.16, 2.18 Harker v Edwards (1898) 57 LJ (NS) QB 147 8.14 Harmer v Armstrong [1934] Ch 65 23.35 — v Federal Commissioner of Taxation (1991) 173 CLR 264; BC9102626 2.16 — v Upwood (1886) 7 LR (NSW) L 296 19.17 Harmond Properties Ltd v Gajdzis [1968] 3 All ER 263 1.11 Harper & Co v Vigers Bros [1909] 2 KB 549 23.6 Harper & Sons v Keller, Bryant & Co (1915) 84 LJKB 1696 23.39 Harper v Godsell (1870) LR 5 QB 422 7.8

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Harris v Fuseoak Pty Ltd (1995) 7 BPR 14,511; BC9501915 7.15, 23.50 Harrison v Lederman [1978] VR 590 18.30 Harrisons & Crossfield Ltd v London & NorthWestern Railway Co [1917] 2 KB 755 4.20, 5.6, 5.15, 5.27, 5.28, 5.53 Harrods Ltd v Lemon [1931] 2 KB 157 15.68 Harry Parker Ltd v Mason [1940] 2 KB 590 13.10 Harry S Bagg Liquidation Warehouse Pty Ltd v Whittaker (1982) 44 NSWLR 421; BC8200008 4.2, 5.51, 20.3 Harsant v Blaine Macdonald & Co (1887) 56 LJQB 511 13.9 Hartop, Ex parte (1806) 12 Ves 349; 33 ER 132 23.13 Harvest Trucking Co Ltd v P B Davis [1991] 2 Lloyd's Rep 638 1.34, 11.43, 11.44, 11.51 Harvey v Burfield (2002) 84 SASR 11; [2002] SASC 314; BC200205509 4.33 — v Phillips (1956) 95 CLR 235; BC5600330 8.31, 20.59 — v State of New South Wales [2006] NSWSC 1436; BC200610778 20.46 Haseldine v Hosken [1933] 1 KB 822 18.16 Haseler v Lemoyne (1858) 5 CBNS 530; 141 ER 214 5.18 Haslam and Hier-Evans, Re [1902] 1 Ch 765 12.13 Hastings Ltd v Pearson [1893] 1 QB 62 21.24 Hastingwood Property Ltd v Saunders Bearman Anselm (a firm) [1991] Ch 114 2.16 Hatzigeorgalis v Ange (1991, unreported); BC9101888 11.29 Havas v Cornish and Company Pty Ltd [1985] 2 Qd R 353 11.16, 11.18 Havyn Pty Ltd v Webster (2005) 12 BPR 22,837; [2005] NSWCA 182; BC200503459 22.37 Hawk Australia Pty Ltd v George Ambrose Commercial Pty Ltd [2007] NSWSC 1150; BC200708823 1.27 Hawke's Bay Milk Corporation Ltd v Watson [1974] 1 NZLR 236 23.62 Hawkins Hill Gold Mining Co v Briscoe (1887) 8 LR (NSW) Eq 123 8.26 Hawkins v Clayton (1988) 164 CLR 539; BC8802597 10.3, 10.5, 10.22, 24.19 — v Gaden (1925) 37 CLR 183; BC2500010 23.30 Hawksford v Hawksford (2005) 191 FLR 173; [2005] NSWSC 463; BC200503085 8.26, 8.37 Hawtayne v Bourne (1841) 7 M & W 595; 151 ER 905 6.3, 6.7

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Haywood v Roadknight [1927] VLR 512 10.19, 12.21 Hazanee Pty Ltd v Elders Ltd (2006) 22 BCL 310; [2006] NTSC 26; BC200601666 7.5 Heald v Kenworthy (1855) 10 Ex 739; 156 ER 638 19.11 Healy v Saunders (1921) 17 Tas LR 32 16.5 Heap v Motorists' Advisory Agency Ltd [1923] 1 KB 577 21.31, 21.33 Heard v Pilley (1869) 4 Ch App 548 4.25 Hearle v Greenbank (1749) 3 Atk 695; 26 ER 1200 3.5 Heath v Chilton (1844) 12 M & W 632; 152 ER 1352 4.31 — v Parkinson (1926) 42 TLR 693 15.69 Heatons Transport (St Helens) Ltd v Transport and General Workers' Union [1973] AC 15 25.38 Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 11.37 Heffernan v Hansford (1936) 53 WN (NSW) 76 1.20, 1.21 Heid v Reliance Finance Corporation Pty Ltd (1983) 154 CLR 326; BC8300104 21.20 Heidelberg Graphics Equipment Ltd v Andrew Knox & Associates Pty Ltd (1994) ATPR ¶41-326; BC9406592 2.5 Helyear v Hawke (1803) 5 Esp 72 22.68 Hely-Hutchinson v Brayhead Ltd [1968] 1 QB 549 4.7, 7.3, 8.34, 8.35, 8.42, 20.3, 20.5, 20.14, 20.33, 20.65 Hemms Cassell & Associates Pty Ltd v Nasr (1994) 8 ANZ Ins Cas ¶61-212 11.54 Henderson & Co v Williams [1895] 1 QB 521 21.2 Henderson v Amadio Pty Ltd (No 1) (1995) 62 FCR 1; BC9502016 1.34, 2.21, 2.25 — v Merrett Syndicates Ltd [1995] 2 AC 145 10.3, 10.5 Hendricks v Great Plains Supply Co, 609 NW 2d 486 7.3 Henning v Ramsay (1963) 81 WN (Pt 1) (NSW) 71 8.7, 15.49, 23.50 Henry Bentley & Co and Yorkshire Breweries Ltd, Re (1893) 69 LT 204 20.16 Henry v Buxton (1904) 4 SR (NSW) 264 15.36 — v Hammond [1913] 2 KB 515 Lupton v White (1808) 15 Ves 432; 33 ER 817 13.6 Heperu Pty Ltd v Morgan Brooks Pty Ltd (No 2) [2007] NSWSC 1438; BC200710862 20.46 Herbert Construction Co v Continental Insurance Co, 931 F 2d 989 20.45

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Herdman v C Dickinson & Co Ltd [1929] NZLR 432 15.75 Heskell v Continental Express Ltd [1950] 1 All ER 1033 7.4, 23.83, 23.91 Hewett v Court (1983) 149 CLR 639; BC8300065 18.21, 18.32 Hewitt v Bonvin [1940] 1 KB 188 22.3 Hewson v Sydney Stock Exchange Ltd [1968] 2 NSWR 224 10.11 Heydon v NRMA Ltd (2000) 51 NSWLR 1; [2000] NSWCA 374; BC200007998 11.32 Heyman v Flewker (1863) 13 CBNS 519; 143 ER205 21.24 Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 2.27 Hichens, Harrison, Woolston & Co v Jackson & Sons [1943] AC 266 23.11, 23.14 Hickey v Donnelly [1971] WAR 153 12.45 Hickman v Turn and Wave Ltd [2011] 3 NZLR 318; [2011] NZCA 100 22.61 Hieber v Barfoot & Thomson Ltd (1996) 5 NZBLC 104 24.33 Higgins v Senior (1841) 8 M & W 834; 151 ER 1278 19.30, 23.42 High Crest Motors Pty Ltd, Re (1978) 3 ACLR 564 18.30 Highfield Property Investments Pty Ltd v Commercial & Residential Developments (SA) Pty Ltd (No 2) [2012] SASC 191; BC201207997 19.30 Hightime Investments Pty Ltd v Adamus Resources Ltd [2012] WASC 295; BC201206174 8.35 HIH Casualty & General Insurance Ltd v Chase Manhattan Bank [2003] 2 Lloyd's Rep 61;0 [2003] UKHL 6 22.35, 22.36 — v JLT Risk Solutions Ltd [2007] 2 Lloyd's Rep 278; [2007] EWCA Civ 710 1.34 Hilbery v Hatton (1864) 2 H & C 822; 159 ER 341 5.18, 5.38 Hill Steam Shipping Co v Hugo Stinnes Ltd [1941] SC 324 23.6 Hill v Davidson [1950] St R Qd 31 15.20, 15.26 — v Harris [1965] 2 QB 601 7.14, 8.5, 22.19 — v Van Erp (1997) 188 CLR 159; BC9700701 24.19 — v Venning (1979) 4 ACLR 555 18.27, 18.33, 18.36, 25.35 — v Willis (1880) 6 VLR (L) 193 8.22 Hine Bros v Steamship Insurance Syndicate Ltd (1895) 72 LT 79 8.11

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Hingston v Wendt (1876) 1 CPD 367 6.3 Hippisley v Knee Bros [1905] 1 KB 1 12.20, 15.68, 15.73 Hirst v West Riding Union Banking Co [1901] 2 KB 560 19.1 Hoare v McCarthy (1916) 22 CLR 296; BC1600025 1.10, 20.7, 20.8, 20.38, 20.53 Hoarey, Re [1906] VLR 437 7.8 Hodges v Montgomery [1916] VLR 90 7.32, 15.70 Hodgkinson v Simms (1995) 117 DLR (4th) 161 10.13 Hodgkiss v Rymill (1871) 5 SALR 139 5.34 Hodgson v Davies (1810) 2 Camp 530; 170 ER 1241 5.32 Hoggart v Cutts (1841) 1 Cr & Ph 197; 41 ER 465 18.7 Holding v Elliott (1860) 5 H & N 117; 157 ER 1123 23.16 Holland v Roperti [2009] VSC 378; BC200908092 12.31 — v Russell (1863) 4 B & S 14; 122 ER 365 23.51 Hollebone's Agreement, Re [1959] 2 All ER 152 18.9 Hollins v Fowler (1875) LR 7 HL 757 2.2, 24.14, 24.15 Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44; BC200104558 22.4, 22.5, 22.6 Holman v Johnson (1775) 1 Cowp 341; 98 ER 1120 13.10 Holmark Construction Co Pty Ltd v Willis Faber Johnson & Higgins (NSW) Pty Ltd (1988) 5 ANZ Ins Cas ¶60-877; BC8801621 11.42 Holmes v Tutton (1855) 5 E & B 65; 119 ER 405 23.8 Holt v Ely (1853) 1 El & Bl 795; 118 ER 634 23.9 Homeward Bound Gold Mining Co NL v McPherson (1895) LR 17 (NSW) Eq 281 19.16 Honeywill and Stein Ltd v Larkin Bros Ltd [1934] 1 KB 191 2.22 Hongkong and Shanghai Banking Corporation Ltd v Jurong Engineering Ltd [2000] 2 SLR 54 20.34 Hook v Day (1971) 2 SASR 440 22.46, 25.38 — v Territory Insurance Office Board (1995) 123 FLR 478 25.44 Hopkins v T L Dallas Group Ltd [2005] 1 BCLC 543; [2004] EWHC 1379 (Ch) 7.31, 20.45

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— v Ware (1869) LR 4 Ex 268 19.11 Hopper v Burness (1876) 1 CPD 137 6.3 Hornby v Lacy (1817) 6 M & S 166 1.15 Hort v Nicholson (1865) 2 WW & A'B (L) 183 7.7 Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; BC8400480 2.5, 2.14, 10.6, 10.17 Hotel Terrigal Pty Ltd (in liq) v Latec Investments Ltd (No 2) [1969] 1 NSWR 676 2.27 Houghland v R R Low (Luxury Coaches) Ltd [1962] 1 QB 694 11.33 Houghton v Matthews (1803) 3 B & P 485; 127 ER 263 8.11, 18.36 Houlahan v Royal Oak Realty (1993) Ltd [1996] 3 NZLR 513 17.21 Houldsworth v City of Glasgow Bank (1880) 5 App Cas 317 22.3, 22.11 Houston v Dewi Thomas Pty Ltd [1967] VR 300 17.5, 17.16 Hovenden & Sons v Millhoff (1900) 83 LT 41 10.13, 12.12, 19.26 Hovil v Pack (1806) 7 East 163; 103 ER 63 5.53 Howard Houlder & Partners Ltd v Manx Isles Steamship Co Ltd [1923] 1 KB 110 15.2, 15.77, 15.80 Howard Smith & Co Ltd v Varawa (1907) 5 CLR 68; BC0700018 4.5, 5.8, 19.46 Howard v Black (1916) 16 SR (NSW) 169 10.9 — v Carline (1956) 7 DLR (2d) 324 21.19 Howell v Bennett and Fisher Ltd [1966] SASR 188 12.43 — v Kenton Agencies Ltd [1953] 1 DLR 821 15.23 — v Owen (1882) 16 SALR 140 7.13, 7.14, 8.7, 8.11 Howells v Waikare Lakelands Ltd (1982) 1 NZCPR 513 16.16 Hubble v Wrightson NMA Ltd [1990] 1 NZLR 393 15.67, 15.74, 15.75 Hugh Stevenson & Sons Ltd v Aktiengesellschaft fur Cartonnagen-Industrie [1918] AC 239 25.22 Hughes Aircraft Systems International v Airservices Australia (1997) 146 ALR 1; BC9702751 10.7, 10.13 Hughes v Liverpool Victoria Legal Friendly Society [1916] 2 KB 482 19.16 — v NM Superannuation Pty Ltd (1993) 29 NSWLR 653 5.24, 5.44, 5.45 Humble v Hunter (1848) 12 QB 310; 116 ER 885 19.35, 19.36, 19.37

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Humphris v Jenshol (1997) 160 ALR 107; BC9705151 12.46 Hunt v Emerson (1914) 20 DLR 381 15.14 Hunter v Parker (1840) 7 M & W 322; 151 ER 789 4.22, 5.26 Hurlingham Estates Ltd v Wilde & Partners (1996) 37 ATR 261 11.27 Hurst v Bryk [2000] 2 All ER 193 15.68, 15.73, 18.15, 18.18 Hurstanger Ltd v Wilson [2007] 4 All ER 1118; [2007] EWCA Civ 299 12.7, 12.10 Hussein v Chong Fook Kam [1970] AC 942 20.74 Hutcheson & Co v Eaton & Son (1884) 13 QBD 861 23.14, 23.18, 23.19 Hutchinson v Brayhead Ltd [1968] 1 QB 549 8.17 Hyams v Stuart King (a firm) [1908] 2 KB 696 10.31 Hyde v Johnson (1836) 2 Bing (NC) 776; 132 ER 299 3.21 HZD Pty Ltd v McInnes (2007) Q ConvR ¶54-675; [2007] QSC 213; BC200706831 23.67

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I Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Table of Cases > Table of Cases

I Please click on the link below to download the entire chapter. IAC (Finance) Pty Ltd v Courtenay (1963) 110 CLR 550; BC6300600 21.20 Iannello v Sharpe (2006) NSW ConvR ¶56-162; [2006] NSWSC 713; BC200605479 8.28 — v — (2007) 69 NSWLR 452; [2007] NSWCA 61; BC200701919 8.28 Igloo Homes Pty Ltd v Sammut Constructions Pty Ltd (2005) 61 ATR 593; [2005] NSWCA 280; BC200510337  22.65 Imageview Management Ltd v Jack [2009] 2 All ER 666; [2009] EWCA Civ 63 12.7, 12.9, 12.52, 15.70 Imperial Bank of Canada v Begley [1936] 2 All ER 367 5.8 Imperial Loan Co v Stone [1892] 1 QB 599 3.2, 19.19 Indeco Pacific Pty Ltd v Geneva Investments Pty Ltd [2012] VSC 621; BC201210122 12.12, 12.14, 12.18, 19.26 Industrial Equity Ltd v Blackburn (1977) 137 CLR 567; BC7700100 2.27 Industrie Chimiche Italia Centrale and Cerealfin SA v Alexander G Tsavliris & Sons Maritime Co (The ‘Choko Star’) [1990] 1 Lloyd's Rep 516 6.3, 8.2 Industries & General Mortgage Co Ltd v Lewis [1949] 2 All ER 573 12.12 ING Re (UK) Ltd v R & V Versicherrung AG [2006] 2 All ER (Comm) 870; [2006] EWHC 1544 (Comm) 5.19, 20.7 Ingham v Walker (1887) 3 TLR 448 18.7 Inglis v Robertson [1898] AC 616 21.22 Innes v Stephenson (1831) 1 M & R 145; 174 ER 50 4.31 Inness v Waterson (2006) Q ConvR ¶54-648; [2006] QCA 155; BC200603193 20.60 Insbury Pty Ltd v Craig [1990] 1 Qd R 309 20.59 Insurance Corporation of British Columbia v Lo (2006) 278 DLR (4th) 148 12.17 International Contract Co, Re (Pickering's Claim) (1871) 6 Ch App 525 23.35, 23.36 International Harvester Company of Australia Pty Ltd v Carrigan's Hazeldene Pastoral Company (1958) 100 CLR 644; BC5800260 1.2, 1.17, 2.2, 2.5

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International Paper Company v Spicer (1906) 4 CLR 739; BC0600014 19.17, 20.16, 20.51 International Railway Company v Niagara Parks Commission [1941] AC 328 23.11 International Specialist Underwriters Ltd v Heiman (1987) 9 NSWLR 201 19.10 Investmentsource Corporation Pty Ltd v Knox Street Apartments Pty Ltd (2002) 56 NSWLR 27; [2002] NSWSC 710; BC200204533 17.5, 17.14, 17.24 Ireland v Livingston (1872) LR 5 HL 395 11.20, 19.17 Irvine & Co v Watson & Sons (1880) 5 QBD 414 19.9, 19.11, 19.12 Irvine v Union Bank of Australia (1877) 2 App Cas 366 5.38, 5.40 Isaacs & Sons v Salbstein [1916] 2 KB 139 23.76 Item Software (UK) Ltd v Fassihi [2005] 2 BCLC 91; [2004] EWCA Civ 1244 10.8 Ivanof v Phillip M Levy Pty Ltd [1971] VR 167 24.23 IVI Pty Ltd v Baycrown Pty Ltd [2005] QCA 205; BC200503989 8.27, 8.30, 20.60

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J Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Table of Cases > Table of Cases

J Please click on the link below to download the entire chapter. J & S Holt & Moseley (London) Ltd v Sir Charles Cunningham & Partners (1950) 83 Lloyd's Rep 141 23.39 J C Houghton & Co v Nothard, Lowe and Wills Ltd [1928] AC 1 22.57 J F & B E Palmer Pty Ltd v Blowers and Lowe Pty Ltd (1987) 75 ALR 509 22.1 J H Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418 2.26, 2.27, 19.7, 19.34 J M Christie v Permewan, Wright & Co Ltd (1904) 1 CLR 693; BC0400015 3.16, 5.14 J R Bryant (Constructions) Pty Ltd v Daniels (1996, unreported); BC9600672 20.59 J R Thomson v Clydesdale Bank Ltd [1893] AC 282 22.9 J S Robertson (Aust) Pty Ltd v Martin (1956) 94 CLR 30; BC5600060 23.18 J W Bollom & Co Ltd v Byas Mosley Ltd [2000] Lloyd's Rep IR 136 11.43 Jack Windle Ltd v Brierly [1952] 1 All ER 398 16.18 Jackson & Co v Napper (1886) 35 Ch D 162 3.16, 3.18, 3.19, 3.20, 3.21, 3.25 Jacobs v Morris [1902] 1 Ch 816 7.9, 20.43 Jacobus Marler Estates Ltd v Marler (1913) 114 LT 640n 12.2, 12.22 Jainran Pty Ltd v Boyana Pty Ltd [2008] NSWSC 468; BC200803479 24.33 James Nelson & Sons Ltd v Nelson Line (Liverpool) Ltd [1906] 2 KB 217 23.7 James Phelps & Co v Hill [1891] 1 QB 605 6.6 James v Bank of Western Australia Ltd (2004) 51 ACSR 325; [2004] WASCA 234; BC200406940 25.19 — v British General Insurance Co [1927] 2 KB 311 18.16 — v Nesbitt (1954) 28 ALR 482 25.24 — v Smith [1931] 2 KB 317 15.26, 15.28 James Vale & Co v Van Oppen & Co Ltd (1921) 37 TLR 367 11.47 Jaques v Lloyd D George & Partners Ltd [1968] 2 All ER 187 15.27, 15.48, 15.49, 15.52, 15.72

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Jebara v Ottoman Bank [1927] 2 KB 254 6.2, 6.4, 6.6 Jenkins v Hutchinson (1849) 13 QB 744; 116 ER 1448 23.15 Jennings v Credit Corp Australia Pty Ltd (2000) 48 NSWLR 709; [2000] NSWSC 210; BC200001307 5.52 Jessett Properties Ltd v UDC Finance Ltd [1992] 1 NZLR 138 22.55, 22.63 Jiao v Barge (2006) 18 PRNZ 396; [2006] NZSC 82 4.25 Jiwunda v Trustees of the Travel Compensation Fund (2006) 12 BPR 23,857; [2006] NSWSC 741; BC200605591  4.25, 4.28 Joair Nominees Pty Ltd v Eccles Realty Pty Ltd [1992] ANZ ConvR 36 15.23, 15.24 John D Hope & Co v Glendinning [1911] AC 419 18.8, 18.11, 18.21, 18.22, 18.28, 18.29 John D Wood & Co (Residential & Agricultural) Ltd v Knatchbull [2003] 1 EGLR 33; [2002] EWHC 2822 (QB) 11.17 John D Wood and Co v Dantata [1987] 2 EGLR 23 16.16 John G Glass Real Estate Pty Ltd v Karawi Constructions Pty Ltd [1994] ANZ ConvR 294; BC9304871 24.30, 24.32 John McCann & Co (a firm) v Pow [1975] 1 All ER 129 9.1, 9.4, 9.6, 9.22 John Meacock & Co (a firm) v Abrahams [1956] 3 All ER 660 15.11, 15.77 John R Ring Pty Ltd v Commissioner of Office of Consumer and Business Affairs (2009) 104 SASR 163; [2009] SASC 174; BC200905563 11.29 John v Dodwell & Co Ltd [1918] AC 563 10.9, 22.50 Johns v Law Society of New South Wales [1982] 1 NSWLR 1 18.24 Johnson Matthey (Aust) Ltd v Dascorp Pty Ltd (2003) 9 VR 154; [2003] VSC 291; BC200305027 21.2 Johnson v Australian Guarantee Corporation Ltd (1992) 59 SASR 382 1.44 — v Credit Lyonnais Co (1877) 3 CPD 32 21.1 — v Kearley [1908] 2 KB 514 18.12, 18.14, 18.15 — v Boyes [1899] 2 Ch 73 8.20, 12.56 Jones (Frank) Brewing Co v Apthorpe (1898) 4 TC 6 2.27 Jones v Apps [2009] VSC 196; BC200904318 23.21 — v Bouffier (1911) 12 CLR 579; BC1190102 1.4, 1.5, 10.17 — v Canavan [1972] 2 NSWLR 236 1.38, 10.1, 10.14, 10.16, 11.2, 11.6, 12.43, 12.50, 19.17

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— v Cuthbertson (1873) LR 8 QB 504 4.31 — v Downman (1842) 4 QB 235; 114 ER 887 23.1 — v Environcom Ltd [2010] Lloyd's Rep IR 676; [2010] EWHC 759 (Comm) 11.41 — v Hope (1880) 3 TLR 247n 5.8, 5.11 — v Knobel & Davis Property Services Pty Ltd [2008] QCA 105; BC200803147 4.27, 17.8 — v Littledale (1837) 6 Ad & El 486; 112 ER 186 19.30, 23.42 — v Mueller [1911] QWN 44 12.43, 12.44, 15.70 — v Peppercorn (1858) Johns 430; 70 ER 490 18.28 — v Peters [1948] VLR 331 4.23, 5.2, 5.26, 5.38 — v Still [1965] NZLR 1071 23.90 Jordy v Vanderpump (1920) 64 Sol Jo 324 12.13 Josland v Mullaley Properties Pty Ltd [1994] ANZ ConvR 276 8.10 Joule Ltd v Poole (1924) 24 SR (NSW) 387 24.14 Jovanovic v Proprietors Strata Plan 13212 and Elite Property Network Pty Ltd (2006) 3 DCLR(NSW) 120 18.9, 18.15 Joynson v Hunt (1905) 93 LT 470 1.18 Judge Smith and Co v Renfrey (1920) 22 WALR 61 15.53 Jumna Khan v Bankers and Traders Insurance Company Ltd (1926) 37 CLR 451; BC2515263 22.25, 22.26, 22.28 Just Juice Corporation Pty Ltd, Re (receivers and managers appointed) (1992) 37 FCR 445; BC9203670 18.22 Juttner v Riedel [1937] SASR 466 22.67

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K Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Table of Cases > Table of Cases

K Please click on the link below to download the entire chapter. Kadner v Brune Holdings Pty Ltd [1973] 1 NSWLR 498 22.23, 22.50 Kang v Kwan [2001] NSWSC 698; BC200104799 20.61 Karawi Constructions Pty Ltd v Bonefind Pty Ltd [1994] ANZ ConvR 290 24.30, 24.37 Katherine Electronic Services Pty Ltd v CGU Insurance Ltd [2003] NTSC 72; BC200303156 11.43 Kavanagh v Continental Shelf Co (No 46) Ltd [1993] 2 NZLR 648 23.88 Kayford Ltd (in liq), Re [1975] 1 WLR 279 12.15 Keay v Fenwick (1876) 1 CPD 745 4.31, 5.38, 5.53, 9.8 Keddie v Canada Life Assurance Company (2000) 179 DLR (4th) 1 1.34, 1.36 Keen v Mear [1920] 2 Ch 574 7.13, 7.19, 7.25, 7.26 Kehoe v Dacol Motors Pty Ltd [1972] Qd R 59 24.9 Keighley, Maxstead & Co v Durant [1901] AC 240 5.3, 5.8, 5.9, 5.10, 19.33, 19.46, 19.47 Keith Henry & Co Pty Ltd v Stuart Walker & Co Pty Ltd (1958) 100 CLR 342; BC5800140 10.9 Kelaw Pty Ltd v General Accident Insurance Co Australia Ltd (1995) 8 ANZ Ins Cas ¶61-285; BC9504072 11.44 Kelley v Corston [1998] QB 686 8.31 Kelly v Cooper [1993] AC 205 1.9, 4.14, 10.1, 10.16, 10.17, 12.51, 12.53, 12.54, 12.55, 15.70 — v Fraser [2013] 1 AC 450; [2012] UKPC 25 20.30, 20.53, 20.54 — v Rounsevell (1885) 19 SALR 89 11.23, 19.17 Kelner v Baxter (1866) LR 2 CP 174 5.14, 23.58, 23.59, 23.61, 23.63 Kempler v Bravingtons (1925) 41 TLR 414 21.30 Kench v Adams (1906) 23 WN (NSW) 48 1.7, 4.11 Kendall v Hamilton (1879) 4 App Cas 504 19.31, 23.70, 23.72 Kendle v Melsom (1998) 193 CLR 46; BC9800311 4.32, 4.33

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Kennedy v De Trafford [1897] AC 180 1.5 — v Green (1834) 3 My & K 699; 40 ER 266 22.56 Kent Prier Real Estate Ltd v Birchfield Developments Ltd [2000] ANZ ConvR 150 15.39, 15.83 — v Kennedy (1999, unreported) 16.5 Kent v Hogarth [1995] QCA 472 (1995, unreported) 8.27 Keogh v Dalgety & Co Ltd (1916) 22 CLR 402; BC1600015 10.9, 12.2, 12.14 Kepitigalla Rubber Estates Ltd v National Bank of India [1909] 2 KB 1010 19.17 Keppel v Wheeler [1927] 1 KB 577 11.15, 11.21, 15.67, 15.69, 15.70, 15.76 Keshen v S Lipsky Co Ltd (1956) 3 DLR (2d) 438 25.9 Kevroy Pty Ltd v Keswick Developments Pty Ltd (2009) 69 ACSR 635; [2009] QSC 49; BC200901422 5.13 Khalaf Agaiby v Darlington Commodities Ltd (1985) ATPR ¶40-535 10.28 Kidderminster Corporation v Hardwich (1873) LR 9 Ex 13 5.46 Kiddill v Farnell (1857) 3 Sm & G 428; 65 ER 723 25.23 Kilbee v Sneyd (1828) 2 Moll 186 3.31 Kimber Coal Company Ltd v Stone & Rolfe Ltd [1926] AC 414 23.21 Kimber v Barber (1872) 8 Ch App 56 12.32 Kimco Corp v Murdoch, Coll & Lillibridge Inc, 730 NE 2d 1143 23.44 Kinahan & Co Ltd v Parry [1910] 2 KB 389 20.51 — v — [1911] 1 KB 459 20.51 The King v Australasian Films Ltd (1921) 29 CLR 195; BC2100031 22.48 — v Brewer (1942) 66 CLR 535; BC4200007 14.5 King v Smith [1900] 2 Ch 425 20.5 Kings North Trust Ltd v Bell [1986] 1 WLR 119 22.44 Kings v Pryor (1896) 22 VLR 106 15.14 Kirk v Bell (1851) 16 QBD 290; 117 ER 890 4.35 Kirkpatrick v Kotis (2004) 62 NSWLR 567; [2004] NSWSC 1265; BC200409031 4.12, 7.1 Kitson v P S King and Son (Limited) (1920) 36 TLR 162 2.6, 15.17

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Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 23.51, 23.52 Kleinwort, Sons & Co v Dunlop Rubber Company (1907) 97 LT 263 23.51 Klement v Pencoal Ltd [1999] QSC 90; BC9901837 5.32, 20.16 Klotz v Neubauer (2001) 82 SASR 6; [2001] SASC 454; BC200108267 12.5 Knezevic v Trevor Jacobs Pty Ltd (2002) 11 Tas R 280; [2002] TASSC 109; BC200207401 17.10 Knight Frank LLP v Du Haney [2011] NPC 40; [2011] EWCA Civ 404 23.88, 23.94 Knight v North Metropolitan Tramways Co (1898) 78 LT 227 5.18 Knoch Estate v Jon Picken Ltd (1991) 83 DLR (4th) 447 1.28, 1.54, 1.55, 10.17, 10.18, 12.49 Knowles v Southern Railway Co [1936] 2 KB 330 7.5 Knox v Cockburn (1862) 1 QSCR 80 8.10 Koenigsblatt v Sweet [1923] 2 Ch 314 5.48 Kofi Sunkersette Obu v A Strauss & Co Ltd [1951] AC 243 15.3 Kontvanis v O'Brien (No 2) [1958] NZLR 516 8.31, 20.57 Kooragang Investments Pty Ltd v Richardson & Wrench Ltd [1981] 2 NSWLR 1 22.13 Kooroontang Nominees Pty Ltd v Australia and New Zealand Banking Group Ltd [1998] 3 VR 16; BC9702676 21.6 Kramer v Cooper [1975] 2 WWR 1 11.21 Kreditbank Cassel GmbH v Schenkers [1927] 1 KB 826 20.74 Kyles Transport Pty Ltd v Zurich Australian Insurance Ltd (1984) 3 ANZ Ins Cas ¶60-600 8.45, 11.42

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L Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Table of Cases > Table of Cases

L Please click on the link below to download the entire chapter. L C Fowler & Sons Ltd v St Stephens College Board of Governors [1991] 3 NZLR 304 1.2, 1.5, 23.74, 23.77, 23.78 L J Hooker Ltd v Dominion Factors Pty Ltd [1963] SR (NSW) 146 16.14, 16.16, 16.21, 16.22 — v W J Adams Estates Pty Ltd (1977) 138 CLR 52; BC7700023 1.19, 15.2, 15.20, 15.26, 15.27, 15.28, 15.44, 15.47, 15.48, 15.77, 16.2, 16.5, 16.6, 16.12, 16.15, 16.23, 16.27, 16.28 L R Smith Realty Ltd v Brentwood Estates Ltd [1989] ANZ ConvR 160 15.75 La Banque Jacques-Cartier v La Banque d'Epargne de Montreal (1887) 13 App Cas 111 5.15 Lacey v Hill (1874) LR 18 Eq 182 18.12 Lady Manor Ltd v Fat Cat Cafi Bars Ltd [2001] 2 EGLR 1 15.8 Lagunas Nitrate Company v Lagunas Syndicate [1899] 2 Ch 392 10.12, 10.13, 12.33 Lahnston v Second Chance Ranch Co, 968 P 2d 32 5.19 Lake v Simmons [1926] 2 KB 51 21.25 Lamb v Attenborough (1862) 1 B & S 831; 121 ER 922 21.24 Lamshed v Lamshed (1963) 109 CLR 440; BC6300350 5.28, 19.5 Lane v Conlan (2004) 28 WAR 337; [2004] WASC 15; BC200400309 2.16 — v Martyn (1894) 15 LR (NSW) L 144 23.3, 23.12 — v Oustalet 873 So 2d 92 (Miss 2004) 12.41, 22.62 — v Tewson (1841) 12 Ad & El 116n; 111 ER 754 18.23 Lang Transport Ltd v Plus Factor International Trucking Ltd (1997) 143 DLR (4th) 672 23.69, 23.70, 23.76 Lang v James Morrison & Co Ltd (1911) 13 CLR 1 1.48 Langan v Great Western Railway Co (1873) 30 LT 173 6.10 Langhorn v Allnut (1812) 4 Taunt 511; 128 ER 429 22.67 Langlands Foundry Company Ltd v Worthington Pumping Engine Company (1896) 22 VLR 144 5.54

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Langley, Beldon & Gaunt Ltd v Morley [1965] 1 Lloyd's Rep 297 1.49, 18.37, 23.14 Lapraik v Burrows (The Australia) (1859) 13 Moo PCC 132; 15 ER 50 5.31, 6.3 Laskin v Bache & Co Inc (1972) 23 DLR (3d) 385 8.15 Latella v L J Hooker Ltd (1985) 5 FCR 146 10.28, 24.29 Latter v Parsons (1906) 26 NZLR 645 15.23, 15.24 Lavery v Nelson (1984) 3 BPR 9211 7.13, 8.5, 22.23 Law Society of New South Wales v Harvey [1976] 2 NSWLR 154 12.37, 12.39 Lawson (Inspector of Taxes) v Hosemaster Machine Co Ltd [1966] 1 WLR 1300 5.34, 5.48 Lazarus v Cairn Line of Steamships Ltd [1911] All ER Rep 1265 25.11, 25.12 Leadbitter v Farrow (1816) 5 M & S 345; 105 ER 1077 21.13, 23.3 Leading Investments Ltd v New Forest Investments Ltd (1981) 126 DLR (3d) 75 15.20, 15.29 Learmonth v Bailey (1876) 2 VLR (E) 228 12.25, 12.30 Lederberger v Mediterranean Olives Financial Pty Ltd [2012] VSCA 262; BC201208017 5.31, 20.62 Lee Cooper Ltd v C H Jeakins & Sons Ltd [1967] 2 QB 1 1.49, 9.14 Lee v Agents Licensing Board (NT) (2011) 29 NTLR 65; [2011] NTSC 7; BC201100091 10.21 — v Irons [1958] VR 436 7.13, 7.16, 8.11, 23.82, 23.91 — v Munn (1817) 8 Taunt 45; 129 ER 299 2.16 — v Sankey (1873) LR 15 Eq 204 4.31, 13.9, 24.7 Leeper v Primary Producers' Bank of Australia Ltd (in vol liq) (1935) 53 CLR 250; BC3590122 18.43 Lees v Fleming [1980] Qd R 162 12.31 Leggo v Brown & Dureau Ltd (1923) 32 CLR 95; BC2300044 23.82, 23.84, 23.85, 23.91 Legione v Hateley (1983) 152 CLR 406 20.60 Leicestershire County Council v Michael Faraday and Partners Ltd [1941] 2 KB 205 13.3, 13.4 Leipner v McLean (1909) 8 CLR 306; BC0900035 5.38 Lemon v Lardur [1946] KB 613 23.5 Lennard v Robinson (1855) 5 E & B 125; 119 ER 428 23.39 Lennard's Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705 24.10

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Lentinan Corporation Pty Ltd v Taylor [1998] VSC 77; BC9806046 1.47 LEP International Pty Ltd v Atlanttrafic Express Service Inc (1987) 10 NSWLR 614 9.20 L'Estrange v F Graucob Ltd [1934] 2 KB 394 5.19 Levine v British Overseas Airways Corp, 66 Misc 2d 766 (Civ Ct, NY County 1971) 1.50 Levitt v Hamblet [1901] 2 KB 53 19.7 Levy v Goldhill & Co [1917] 2 Ch 297 1.18, 15.55 Lewis Blyth and Hooper v Dennis [2007] WASC 177 25.34 Lewis v Alleyne (1888) 4 TLR 560 19.21 — v Combell Constructions Pty Ltd (1989) 18 NSWLR 528 20.59 — v Ramsdale (1886) 55 LT 179 7.8 — v Read (1845) 13 M & W 834; 153 ER 350 5.18, 5.29 — v Samuel (1846) 8 QB 685; 115 ER 1031 18.15 — v Tressider Andrews Associates Pty Ltd [1987] 2 Qd R 533 11.50, 11.55 Leybourne v Permanent Custodians Ltd [2010] NSWCA 78; BC201002464 5.19, 5.22 Lickbarrow v Mason (1787) 2 Term R 63 20.7 Life Association of Scotland v Siddal (1861) 3 De GF & J 58; 45 ER 800 24.7 Life Insurance Company of Australia Ltd v Phillips (1935) 36 CLR 60; BC2500039 19.7, 22.27 Life Savers (Australia) Ltd v Frigmobile Pty Ltd [1983] 1 NSWLR 431 5.23 Lin v Owners - Strata Plan No 50276 (2004) 11 BPR 21,643; [2004] NSWSC 88; BC200400962 1.7 Lincolne v Williams (2008) 18 Tas R 76; [2008] TASSC 41; BC200807225 15.2, 18.8 Linfa Pty Ltd v Citibank Ltd [1995] 1 VR 643; BC9300695 2.27 Lintrose Nominees Pty Ltd v King [1995] 1 VR 574; BC9406287 12.32, 12.43, 12.44 Lister & Co v Stubbs (1890) 45 Ch D 1 12.15, 12.16, 12.17 Lister v Hesley Hall Ltd [2002] 1 AC 215; [2001] UKHL 22 22.15 — v Romford Ice and Cold Storage Co Ltd [1957] AC 555 10.1 Little v Spreadbury [1910] 2 KB 658 8.31, 20.14

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Liu Wing Ngai t/a Kam Wah Ultrasonic Engineering Co v Lui Kok Wai t/a Almac Machinery [1996] 3 SLR(R) 508  2.4, 18.19 Liverpool Household Stores Association (Ltd), Re (1890) 59 LJ Ch 616 4.33, 4.35 Livingston v Commissioner of Stamp Duties (Qld) (1960) 107 CLR 411; BC6000070 18.32 Livingstone v Ross [1901] AC 327 2.2 Llanelly Railway and Dock Co v London and North-Western Railway Co (1873) 8 Ch App 942 25.8, 25.10 Lloyd v David Syme & Co Ltd [1986] AC 350 22.70 — v Grace, Smith & Co [1912] AC 716 20.29, 22.11, 22.12, 22.13, 22.14, 22.15, 22.58 Lloyds and Scottish Finance Ltd v Williamson [1965] 1 All ER 641 21.1, 21.2, 21.17 Lloyds Bank Ltd v Bank of America National Trust and Savings Association [1938] 2 KB 147 21.22 — v Chartered Bank of India, Australia and China [1929] 1 KB 40 20.39, 20.44, 21.11, 21.12 Lockett v Norman-Wright [1925] Ch 56 8.27 Loescher v Dean [1950] 1 Ch 491 18.24 Lofthouse (Trustee) v Stirling (2008) 173 FCR 574; [2008] FCA 1936; BC200811393 3.20 Logicrose Ltd v Southend United Football Club Ltd [1988] 1 WLR 1256 10.9, 10.13, 12.18, 19.25, 19.26, 22.56 Lomax v Dankel (1981) 29 SASR 68 23.58, 23.61, 23.62, 23.86 Lombe v Wagga Leagues Club Ltd (2006) 56 ACSR 387; [2006] NSWSC 3; BC200600157 2.13 London and Globe Finance Corporation, Re [1902] 2 Ch 416 18.28 London County Council v Agricultural Food Products [1955] 2 QB 218 3.25 London Joint Stock Bank v Simmons [1892] AC 201 21.1, 21.7, 21.8, 21.9, 21.15, 21.16 Longman v Lord Hill (1891) 7 TLR 639 23.76 Longpocket Investments Pty Ltd v Hoadley (1985) 3 BPR 9606 8.28 Looker & Sons v Doveton [1911] VLR 23 15.39 Lord Chedworth v Edwards (1802) 8 Ves 46; 32 ER 268 13.1 Lord v Hall (1849) 8 CB 627 9.19 — v Trippe (1977) 51 ALJR 574; BC7700040 16.25, 16.26 Lott v Outhwaite (1893) 10 TLR 76 15.80

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Loveridge v Cooper (1959) 18 DLR (2d) 337 15.26, 15.30, 15.63 Lovesy v Palmer [1916] 2 Ch 233 23.3, 23.5 Lovett v Carson Country Homes Ltd [2009] 2 BCLC 196; [2009] EWHC 1143 (Ch) 8.38 Lowe v Rutherford Thompson McRae Ltd (1971) 14 DLR (3d) 772 25.9 Lower Hutt City v Attorney-General [1965] NZLR 65 1.5, 2.21 Lowther v Harris [1927] 1 KB 393 21.24, 21.25, 21.26 — v Lord Lowther (1806) 13 Ves 95; 33 ER 230 12.25 Lucas v Dorrien (1817) 7 Taunt 278; 129 ER 112 18.34 Lucifero v Castel (1887) 3 TLR 371 12.32 Lucke v Cleary (2011) 111 SASR 134; [2011] SASCFC 118; BC201108376 20.57 Lucking's Will Trusts, Re [1968] 1 WLR 866 3.31 Lucock, Re (1924) 20 Tas LR 52 19.31 Ludgater v Love (1881) 44 LT 694 22.31, 24.23 Lundie v Rowena Nominees Pty Ltd (receiver & manager appointed) (in liq) (2006) 32 WAR 404; [2006] WASCA 106; BC200604321 23.3, 23.36 Lunghi v Sinclair [1966] WAR 172 11.21, 11.27, 12.28, 15.67, 15.70 Lupton v White (1808) 15 Ves 432; 33 ER 817 13.6 Luxmoore-May v Messenger May Baverstock (a firm) [1990] 1 All ER 1067 11.31 Luxor (Eastbourne) Ltd v Cooper [1941] AC 108 1.17, 1.18, 1.19, 1.20, 15.20, 15.21, 15.27, 15.32, 15.44, 15.45, 15.46, 15.47, 15.48, 15.52, 15.53, 15.61, 15.62 Ly, Re (1995) 62 FCR 432; BC9500239 18.39 Lyell v Kennedy (1889) 14 App Cas 437 5.23, 5.53, 10.9, 13.23, 24.7 Lysaght Bros & Co Ltd v Falk (1905) 2 CLR 421 1.19, 7.4, 7.31, 10.1, 19.6, 20.5, 20.28, 20.39, 20.41, 20.49

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M Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Table of Cases > Table of Cases

M Please click on the link below to download the entire chapter. M (a debtor), Re (1909) 10 SR (NSW) 175 7.18, 25.26 M F Faure & Fairclough Ltd [1966] 1 QB 650 22.24 M McKillop Ltd v Borthwick [1976] 2 NZLR 482 17.5 Maberley v Robbins (1814) 5 Taunt 625; 128 ER 835 23.45 Mabo v State of Queensland (No 2) (1992) 175 CLR 1 1.51 MacArthur & MacLeod Pty Ltd v Carey [1931] VLR 269 15.23 MacCormac v Bradford [1927] SASR 152 23.6 MacCormick v Nowland (1988) ATPR ¶40-852; BC8802706 22.21, 22.34, 24.25 Mackay v Commercial Bank of New Brunswick (1874) LR 5 PC 394 22.10, 22.15 MacKenzie v Carroll (1974) 53 DLR (3d) 699 25.19, 25.25 — v MacKenzie (1998) 16 FRNZ 487 5.10 Mackersy v Ramsays, Bonar & Co (1843) 9 Cl & F 818; 8 ER 628 9.10 Mackman v Stengold Pty Ltd (1991) ATPR ¶41-105; BC9103135 22.7, 24.32, 24.34, 24.37 Maclaine Watson & Co Ltd v Department of Trade and Industry [1989] Ch 72 2.26, 2.27, 19.7, 19.34 MacLean v Arklow Investments Ltd [1998] 3 NZLR 680 10.21, 12.6 Maclean v Dunn (1828) 4 Bing 722; 130 ER 947 4.25, 5.40, 5.48 Macmillan Inc v Bishopsgate Investment Trust plc [1995] 1 WLR 978 20.43 MacMillan v A W Knott Becker Scott Ltd [1990] 1 Lloyd's Rep 98 9.15, 24.20 Macnamara v Martin (1908) 7 CLR 699 15.68 Madden v Kempster (1807) 1 Camp 12; 170 ER 859 18.34 Madders v Walker [1995] 2 Qd R 386 12.31 Maddison Group Pty Ltd v Goldstein [1990] ANZ ConvR 258 15.31

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Maga v Archbishop of Birmingham [2010] 1 WLR 1441; [2010] EWCA Civ 256 22.15 Magadi Soda Co Ltd, Re (1925) 41 TLR 297 1.45, 13.5 Magee v UDC Finance Ltd [1983] NZLR 438 22.49, 22.50 Magnussen v Flanagan [1981] 2 NSWLR 926 21.27, 21.28, 21.29, 21.31 Magor v Donald (1887) 13 VLR 255 7.7 Magrath v Collins (1917) 37 DLR 611 19.16, 19.31, 22.55 Magripilis v Baird [1926] St R Qd 89 20.29, 20.60 Maguire v Makaronis (1997) 188 CLR 449 10.13 Mahesan v Malaysia Government Officers' Co-operative Housing Society Ltd [1979] AC 374 12.7, 12.14, 12.18, 19.25, 19.26 Mahoe Developments Pty Ltd v Lionbond Pty Ltd [1992] ANZ ConvR 199 12.31 Mahoney v Kekule (1854) 14 CB 390; 139 ER 161 23.39 Mair v Rio Grande Rubber Estates Ltd [1913] AC 853 1.41, 19.16, 22.7 Majeau Carrying Co Ltd v Coastal Rutile Ltd (1973) 129 CLR 48 18.28 Majesty Restaurant Pty Ltd (in liq) v Commonwealth Bank of Australia (1998) 47 NSWLR 593; BC9807765 19.21 Makepeace v Rogers (1865) 4 De GJ & Sm 649; 46 ER 1070 13.1 Malcolm v Scott (1850) 5 Ex 601; 155 ER 263 23.54 Malik v Bank of Credit and Commerce International SA (in liq) [1998] AC 20 18.3 Malki v Nicholas & Mann Real Estate Pty Ltd [1999] ANZ ConvR 577; [1998] NSWCA 285; BC9808009 12.27, 12.28 Maloney v Hardy and Moorshead (1970) 216 EG 1582 2.17 Manchester Diocesan Council for Education v Commercial and General Investments Ltd [1969] 3 All ER 1593 5.25 Manchester Trust v Furness [1895] 2 QB 539 7.4, 19.40, 21.31 Manias, Re (1986) 15 FCR 1 5.51 Mann v Forrester (1814) 4 Camp 60; 171 ER 20 18.25 Manns v Bradley [1960] NZLR 586 15.23 Mansell v Clements (1874) LR 9 CP 139 15.27 Mansley & Sons Ltd v Berkett [1912] 2 KB 329 23.8

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Manufacturers' Mutual Insurance Ltd v John H Boardman Insurance Brokers Pty Ltd (1994) 179 CLR 650; BC9404631 19.9, 19.10 Manzanilla Ltd v Corton Property and Investments Ltd (1996, unreported); [1996] EWCA Civ 942 2.16 Marblestone Industries Ltd v Fairchild [1975] 1NZLR 529 23.60, 23.63, 23.64 Marcan Shipping (London) Ltd v Polish Steamship Co (The ‘Manifest Lipkowy’) [1989] 2 Lloyd's Rep 138 15.59, 15.60 Marcolongo v Mattiussi [2000] NSWSC 834; BC200004900 12.39 Marcq v Christie Manson & Woods (trading as Christie's) [2004] QB 286; [2003] EWCA Civ 731 24.15 Marfani & Co Ltd v Midland Bank Ltd [1968] 1 WLR 956 21.11 Margaret Mitchell, The (1858) 4 Jur NS 1193; 166 ER 1174; Sw 382 25.5, 26.4 Marginson v Ian Potter & Co (1976) 136 CLR 161 23.71, 23.72 Mark Bain Constructions Pty Ltd v Avis [2012] QCA 100; BC201202170 8.5 Markson v Cutler (2007) 13 BPR 25,127; [2007] NSWSC 1515; BC200711919 8.9, 11.21, 20.34 Markwick v Hardingham (1880) 15 Ch D 339 4.5 Marqusee v Hartford Fire Insurance Co, 198 F 475 (1912) (cert denied 299 US 621 (1913)) 5.45 Marriott v General Electric Co Ltd (1935) 53 CLR 409; BC3590104 5.30, 7.29 Marsh & McLennan Pty Ltd v Stanyers Transport Pty Ltd [1994] 2 VR 232 23.43 Marsh v Jelf (1862) 3 F & F 234; 176 ER 105 8.24 — v Joseph [1897] 1 Ch 213 5.8, 5.19, 5.28, 22.1 Marshall v Cliff (1815) 4 Camp 133; 171 ER 43 22.67 — v Glanvill [1917] 2 KB 87 25.32 — v NM Financial Management Ltd [1995] 4 All ER 785 25.33 Martin v Option Investments (Aust) Pty Ltd (No 2) [1982] VR 464 1.38, 7.31, 11.1 — v Pont [1993] 3 NZLR 25 13.10 — v Tucker (1885) 1 TLR 655 15.80 Martin-Baker Aircraft Co Ltd v Canadian Flight Equipment Ltd [1955] 2 QB 556 25.9 Martini v Coles (1813) 1 M & S 140; 105 ER 53 21.17

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Marvin Manufacturers (Aust) Pty Ltd v Chamber of Manufacturers Insurance Ltd (1992) 7 ANZ Ins Cas 161-122; BC9200709 11.44 Marzo v Land and Homes (WA) Ltd (1931) 34 WALR 62 19.31, 23.6, 23.44, 23.56 Mason & Taylor, Re (1878) 10 Ch D 729 18.34 Mason v Clifton (1863) 3 F & F 899; 176 ER 408 9.10, 15.80 Massey v Crown Life Insurance Co [1978] 2 All ER 576 1.5 Masters v Cameron (1954) 91 CLR 353; BC5400580 11.15 Matai Industries Ltd v Jensen [1989] 1 NZLR 525 1.44 Matthews v Munster (1887) 20 QBD 141 1.40 Mattis v Pollock [2003] 1 WLR 2158; [2003] EWCA Civ 887 22.15 Matveieff & Co v Crossfield (1903) 8 Com Cas 120 8.16 Max Christmas Real Estate v Schumann Marine Pty Ltd [1987] 1 Qd R 325 15.42 Maxwell, Ex parte (1955) 72 WN (NSW) 333 1.39, 8.25 Maxwell v Dixon [1965] WAR 167 12.45 — v Vincent (1890) 16 VLR 154 (PC) 22.19 Maye v Colonial Mutual Life Assurance Society Ltd (1924) 35 CLR 14 2.28, 22.8, 22.26 Maynegrain Pty Ltd v Compafina Bank [1982] 2 NSWLR 141 19.2, 19.29, 19.31, 19.33, 19.46, 19.47, 23.40 McAndrew v Gray (1920) 20 SR (NSW) 635 15.2, 15.7, 15.9 McBrayne v Imperial Loan Co (1913) 13 DLR 448 16.23 McCall v Australian Meat Co Ltd (1870) 19 WR 188 25.21 McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579; [2000] HCA 65; BC200007594 12.7 McClaren v Rolling and Davies (1947, unreported) 23.47 McCourt v Cranston [2009] WASC 56; BC200901574 12.43, 12.47 McDonald v Morrison (1895) 27 NSR 347 5.32 — v Peek [1923] SASR 513 15.13, 15.14, 15.82, 15.83 McDonnell v Barton Realty Ltd [1992] 3 NZLR 418 12.47, 12.50, 15.70 McEntire v Potter & Co (1889) 22 QBD 438 24.16

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McEvoy v Body Corporate for No 9 Port Douglas Road [2013] QCA 168; BC201310383 5.51, 5.52 McFarland v Entergy Mississippi Inc, 919 So 2d 894 (Miss 2005) 20.46 McInerney v MacDonald (1992) 93 DLR (4th) 415 10.19 Mcintosh v Linke Nominees Pty Ltd [2008] QCA 275; BC200809066 23.91 McKenzie v McDonald [1927] VLR 134 10.17, 12.26 — v Payne (1952) 69 WN (NSW) 266 21.33 McLachlan-Troup v Peters [1983] 1 VR 53 5.27, 5.38 McLaughlin v City Bank of Sydney (1912) 14 CLR 684; BC1290120 5.32 — v Daily Telegraph Newspaper Co Ltd (1904) 1 CLR 243 1.10, 18.15, 19.19, 19.20, 23.88, 25.41 — v Duffill [2010] Ch 1; [2008] EWCA Civ 1627 4.25 — v Gentles (1919) 51 DLR 383 20.51, 20.52 McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835 5.8 McLellan Properties Ltd v Roberge [1947] 4 DLR 641 5.15 McLennan v Wolfsohn [1973] 2 NZLR 452 15.23, 15.75 McMahon v Cooper (1904) 4 SR (NSW) 433 3.31 McMillan v McMillan (1891) 17 VLR 33 3.31 McNally v Jackson (1938) 42 WALR 27 23.15, 23.19, 23.43 McNealy v Pennine Insurance Co Ltd [1978] 2 Lloyd's Rep 18 11.43, 11.53 McPhail v Brown [1925] GLR 390 12.50 McPherson v Watt (1877) 3 App Cas 254 12.28 McRae v Coulton (1986) 7 NSWLR 644 3.20, 3.21, 3.25 Meadow Schama & Co v C Mitchell & Co Ltd (1973) 228 EG 1511 12.12, 12.40 Measures Brothers Ltd v Measures [1910] 2 Ch 248 25.11 Meddick v Cutten and Harvey (1984) 36 SASR 542 11.23 Medical Benefits Fund of Australia Ltd v Cassidy (2003) 135 FCR 1; [2003] FCAFC 289; BC200307781 24.35 Meehan v Jones (1982) 149 CLR 571; BC8200103 15.36 Menard Inc v Dage-MTI Inc, 726 NE 2d 1206 (Ind 2000) 20.16

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Mendelsohn v Stirgess (1912) 12 SR (NSW) 86 15.38 Mercantile Credit Co Ltd v Hamblin [1965] 2 QB 242 1.31, 20.1, 21.2 Mercantile Credits Ltd v Jarden Morgan Australia Ltd [1991] 1 Qd R 407 18.30, 18.33 Mercantile International Group plc v Chuan Soon Huat Industrial Group Ltd [2002] CLC 913; [2002] EWCA Civ 288  2.3 Mercedes-Benz Financial Services Australia Pty Ltd v State of New South Wales [2011] NSWSC 1458; BC201109291 21.29, 21.31 Mercer v Graves (1872) LR 7 QB 499 18.32 Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 22.66 Messagemate Australia Pty Ltd v National Credit Insurance (Brokers) Pty Ltd (2002) 85 SASR 303; [2002] SASC 327; BC200205928 11.32 Messenger, Re (1876) 3 Ch D 317 18.42 Meter Cabs Ltd, Re [1911] 2 Ch 557 18.32 Metropolitan Assurance Co v Samuel & Co [1923] 1 KB 348 23.51 Metropolitan Asylums Board of Managers v Kingham & Sons (1890) 6 TLR 217 5.24, 5.25 Metropolitan Bank v Heiron (1880) 5 Ex D 319 12.16 Metropolitan Transit Authority v Waverley Transit Pty Ltd [1991] 1 VR 181 20.12 Metrot Pty Ltd v Manufacturers' Mutual Insurance Ltd (1990) 21 NSWLR 220 19.10 Mews v Carr (1856) 1 H & N 484; 156 ER 1292 8.19, 8.21 Micarone v Perpetual Trustees Australia Ltd (1999) 75 SASR 1; [1999] SASC 265; BC9903786 1.31, 22.44, 22.61, 22.63 Michael J Bignell Pty Ltd v Noakes [1989] ANZ ConvR 148; BC8800950 15.31, 16.11 Michalopoulos v Perpetual Trustees Victoria Ltd [2010] NSWSC 1450; BC201009718 1.6, 1.32 Midcon Oil & Gas Ltd v New British Dominion Oil Co Ltd (1958) 12 DLR (2d) 705 2.21 Middleton v Cavenett [1923] SASR 255 10.31 Midgley Estates Ltd v Hand [1952] 2 QB 432 15.24, 15.26, 15.27, 15.28, 15.33 Midland Bank Ltd v Reckitt [1933] AC 1 5.2, 5.33, 7.11, 20.5, 20.39, 21.12 — v Seymour [1955] 2 Lloyd's Rep 147 19.17 Mildred, Goyeneche & Co v Maspons, y Hermano (1883) 8 App Cas 874 18.46

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Miles v Haslehurst & Co (1906) 23 TLR 142 19.17 — v McIlwraith (1883) 9 App Cas 120 20.51 Militz v Bowering-Wood [1954] SASR 175 23.69, 23.70 Millar v Radford (1903) 19 TLR 575 16.5 Miller Associates (Australia) Pty Ltd v Benington Pty Ltd [1975] 2 NSWLR 506 23.61, 23.63 Miller, Gibb & Co v Smith & Tyrer Ltd [1917] 2 KB 141 23.39 Miller v Gunther [2005] QSC 90; BC200502489 24.28 Milu v Smith [2004] QSC 27; BC200400567 11.35 Minahan v Sahib Dad (1925) 25 SR (NSW) 613 23.46 Miss Gray Ltd v Earl Cathcart (1922) 38 TLR 562 6.12 Mitchel v Reynolds (1711) 1 P Wms 181; 24 ER 347 7.2 Mitchell v Hayne (1824) 2 Sim & St 63; 57 ER 268 18.7 — v Valherie (2005) 93 SASR 76; [2005] SASC 350; BC20050680 24.30, 24.39 Mitchell-Clapham v Fullarton (1974) 46 DLR (3d) 766 19.31 Mitor Investments Pty Ltd v General Accident Fire and Life Assurance Corporation Ltd [1984] WAR 365 11.42, 11.46 M'Kenzie v British Linen Co (1881) 6 App Cas 82 5.15 M'Millan v Read (1877) 3 VLR (L) 284 18.13, 23.46 Moffat v Wetstein (1996) 135 DLR (4th) 298 10.19 Moffatt v Bateman (1869) LR 3 PC 115 11.34 Mohamed v Farah [2004] NSWSC 482; BC200403298 20.59 Moiler v Forge (1927) 27 SR (NSW) 69 1.56, 10.9, 12.47 Molton v Camroux (1849) 2 Ex 487; 154 ER 584 19.19 Momentum Productions Pty Ltd v Lewarne (2009) 174 FCR 268; [2009] FCAFC 30; BC200901916 1.48 Mona Oil Equipment & Supply Co Ltd v Rhodesia Railways Ltd [1949] 2 All ER 1014 15.62 Moneywood Pty Ltd v Salamon Nominees Pty Ltd (2001) 202 CLR 351; [2001] HCA 2; BC200100151 16.2, 16.6, 17.5, 17.15, 17.18, 17.19 Montagu v Forwood [1893] 2 QB 350 9.10, 9.15, 19.14, 19.32, 21.5

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Montgomerie v United Kingdom Mutual Steamship Association [1891] 1 QB 370 19.1, 23.39 Moodemere Pty Ltd (in liq) v Waters [1988] VR 215 18.32 Mooney v Williams (1905) 3 CLR 1; BC0500036 19.2, 19.31, 19.33 Moor Line Ltd v Louis Dreyfus & Co [1918] 1 KB 89 15.5 Moore Park Gardens Management Pty Ltd v Chief Commissioner of State Revenue (2004) 56 ATR 417; [2004] NSWSC 417; BC200403269 5.8 Moore v Bushell (1857) 27 LJ Ex 3 23.54 — v Dent (1918) 18 SR (NSW) 455 10.1, 10.22, 15.29, 16.15 — v Flanagan [1920] 1 KB 919 23.69, 23.70, 23.72, 23.78 — v Metropolitan Railway Company (1872) LR 8 QB 36 8.12 — v Usher (1835) 7 Sim 383; 58 ER 884 18.7 Moorgate Mercantile Co Ltd v Twitchings [1977] AC 890 21.1, 21.2, 21.19 Moran v Hull [1967] 1 NSWR 723 16.5, 16.6, 16.18, 16.24 Morel Bros & Co Ltd v Earl of Westmoreland [1903] 1 KB 64 23.70 — v — [1904] AC 11 23.70, 23.78 Morgan v Babcock & Wilcox Ltd (1929) 43 CLR 163 14.14 — v Director of Public Prosecutions [1970] 3 All ER 1053 14.7 — v Lifetime Building Supplies Ltd (1967) 61 DLR (2d) 178 23.70, 25.38 Morgans v Launchbury [1973] AC 127 4.4, 4.18, 22.40 Morison v London County and Westminster Bank Ltd [1914] 3 KB 356 5.19 — v Thompson (1874) LR 9 QB 480 12.14 Morlend Finance Corporation (Vic) Pty Ltd v Westendorp [1993] 2 VR 284 1.31 Morris v C W Martin & Sons Ltd [1966] 1 QB 716 9.14 — v Cleasby (1816) 4 M & S 566; 105 ER 943 1.14, 1.15 — v Kanssen [1946] AC 459 20.2, 20.74 Mort v Barnes [1928] VLR 56 21.1 Mortgage Express Ltd v Bowerman and Partners (a firm) [1996] 2 All ER 836 12.59

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Mortgage Loan & Finance Co of Australia Ltd v Richards (1931) 32 SR (NSW) 50 21.30 Moss v Moss (No 2) (1900) 21 LR (NSW) Eq 253 10.6 Mossman v Australasian Steam Navigation Co (1873) 12 SCR (NSW) 62 18.22 Motel Marine Pty Ltd v IAC Finance Pty Ltd (1964) 110 CLR 9; BC6400080 3.21, 19.1 Motion v Michaud (1892) 8 TLR 253 25.9 Motor Credits (Hire Purchase) Ltd v Pacific Motor Auctions Pty Ltd (1963) 109 CLR 87; BC6300110 21.1, 21.14, 21.15, 21.16, 21.18 Motor Finance and Trading Company Ltd v Brown [1928] SASR 153 21.15 Moukataff v British Overseas Airways Corp [1967] 1 Lloyd's Rep 396 9.14 Mousell Brothers Ltd v London and North-Western Railway Co [1917] 2 KB 836 22.48 MSM Consulting Ltd v United Republic of Tanzania (2009) 123 Con LR 154; [2009] EWHC 121 (QB) 16.3 Mullens v Miller (1882) 22 Ch D 194 8.5, 8.6, 22.22, 22.23 Mulligan (deceased), Re [1998] 1 NZLR 481 11.25 Mulliner v Florence (1878) 3 QBD 484 18.37 Multitec FBM (Asia Pacific) Pty Ltd v Han (2008) 69 ACSR 106; [2008] NSWSC 1339; BC200811017 5.51 Multo Pty Ltd v Craddock (1988, unreported); BC8802136 17.14 Munro v De Chemant (1815) 4 Camp 215; 171 ER 69 25.38, 25.46 — v Willmott [1949] 1 KB 295 6.9 Murphy v O'Shea (1845) 2 Jo & Lat 422; 69 RR 337 12.29 Murray v Delta Copper Co [1925] 4 DLR 1061 23.70 — v Veinotte [1951] 2 DLR 721 1.28 Mutual Life Insurance Company of New York v Hilton-Greene, 241 US 613 (1916) 22.49, 22.56 Mutual Provident Society v Chaplin (1978) 18 ALR 385 1.5 Myers v Griffiths (1948) 22 ALJ 297 16.21 Mynn v Joliffe (1834) 1 Mood & R 326; 174 ER 112 8.7 MYT Engineering Pty Ltd v Mulcon Pty Ltd (1999) 195 CLR 636; BC9902256 1.42

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N Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Table of Cases > Table of Cases

N Please click on the link below to download the entire chapter. N & J Vlassopulos Ltd v Ney Shipping Ltd (The ‘Santa Carina’) [1977] 1 Lloyd's Rep 478 23.43, 23.44 Napev Construction Ltd v Lebedinsky (1984) 7 CLR 57 19.1 Natal Land etc Co v Pauline Colliery Syndicate [1904] AC 120 5.13 Nathan v Dollars & Sense Finance Ltd [2007] 2 NZLR 747; [2007] NZCA 177 22.44, 22.58, 22.59 National Australia Bank Ltd v Composite Buyers Ltd (1991) 6 ACSR 94; BC9101539 18.27 — v Walter (2004) 1 BFRA 509; [2004] VSC 36; BC200400511 1.45 National Business Consultants Pty Ltd v Reysson Pty Ltd [1986] Tas R (NC) 15 17.24 National Coffee Palace Co, Re (1883) 24 Ch D 367 23.91 National Commercial Banking Co of Australia Ltd v Robert Bushby Ltd [1984] 1 NSWLR 559 21.12 National Credit Union Administration v Ticor Title Insurance Co, 873 F Supp 718 22.62 National Insurance and Guarantee Corporation plc v Imperio Reinsurance Company (UK) Ltd [1999] Lloyd's Rep IR 249 5.37 National Mercantile Bank Ltd v Rymill (1881) 44 LT 767 24.15 National Oilwell (UK) Ltd v Davy Offshore Ltd [1993] 2 Lloyd's Rep 582 5.12, 5.45 National Permanent Benefit Building Society, Re (1869) LR 5 Ch App 309 19.21 National Roads and Motorists' Association v Whitlam (2007) 25 ACLC 688; [2007] NSWCA 81; BC200702391  18.12 Nationwide News Pty Ltd v Samalot Enterprises Pty Ltd (No 2) (1986) 5 NSWLR 227 1.47, 18.32 Nayler v Yearsley (1860) 2 F & F 41; 175 ER 950 25.31 NB Hunt & Sons Ltd v Maori Trustee [1986] 2 NZLR 641 20.11 NCR Australia Pty Ltd v Credit Connection Pty Ltd (in liq) [2004] NSWSC 1; BC200400104 8.40, 20.19, 20.44 Neagle v Power [1967] SASR 373 10.5, 11.27 Neal, Re (1993) 114 ALR 659; BC9304799 20.12

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Neale v Lady Gordon Lennox [1902] 1 KB 838 20.58 Nece Pty Ltd v Ritek Incorporation (1997) 24 ACSR 38; BC9702429 8.36 Neeson v Wrightson NMA Ltd [1989] ANZ ConvR 605 8.9, 11.7, 11.13 Neilson v James (1882) 9 QBD 546 11.1 Nelly & Rodgers v Daycock [1943] 1 DLR 345 15.63 Nelson Bros Ltd v Nagle [1940] GLR 507 1.44 Nelson v Aldridge (1818) 2 Stark 435; 171 ER 697 8.22, 11.1 — v Dahl (1879) 12 Ch D 568 8.16 — v Nelson (1995) 184 CLR 538; BC9501517 13.11 Nestle v National Westminster Bank plc [1993] 1 WLR 1260 11.25 Netage Pty Ltd v Cantley (1985) 6 IPR 200; BC8500357 7.1, 19.28, 23.5 Nevitts Ltd v Cooper (1988) 10 Qld Lawyer Reps 40 8.14 New Brunswick Railway Co v Conybeare (1862) 9 HL Cas 711 19.16 New Era Installations Pty Ltd v Don Mathieson & Staff Glass Pty Ltd (1999) 31 ACSR 53; [1999] FCA 475; BC9901913 5.30 New South Wales Land and Housing Corp v Sydneywide Real Estate Co Pty Ltd (1998) 9 BPR 16,565; BC9802907  15.20, 15.23, 15.26, 15.65, 15.80, 15.81 New South Wales Mutual Real Estate Fund Ltd v Brookhouse (1979) ATPR ¶40-104 22.66 New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4; BC200300126 22.15 New York Life Insurance Co v Fletcher, 117 US 519 (1886) 22.25 New Zealand and Australian Land Company v Watson (1881) 7 QBD 374 9.10, 18.46 New Zealand Farmers' Co-operative Distributing Company Ltd v National Mortgage and Agency Company of New Zealand Ltd [1961] NZLR 969 18.15 New Zealand Netherlands Society (‘Oranje’) Inc v Kuys [1973] 2 All ER 1222 10.17, 12.38 New Zealand Tenancy Bonds Ltd v Mooney [1986] 1 NZLR 280 8.9, 20.29, 20.32, 20.33 Newall v Tomlinson (1871) LR 6 CP 405 23.51 Newborne v Sensolid (Great Britain) Ltd [1954] 1 QB 45 23.58, 23.59, 23.63

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Newcastle International Airport Ltd v Eversheds LLP [2012] EWHC 2648 (Ch) 20.43 Newen, Re [1903] 1 Ch 812 8.31, 9.3 Newham v Diamond Leisure Pty Ltd (No 2) (1994) 117 FLR 429 10.31 News Ltd v Australian Rugby Football League Ltd (1996) 139 ALR 193; BC9604667 10.17 — v South Sydney District Rugby League Football Club Ltd (2003) 215 CLR 563; [2003] HCA 45; BC200304465  1.5, 1.6, 2.27, 4.13 Newsholme Bros v Road Transport and General Insurance Company Ltd [1929] 2 KB 356 22.25, 22.28 Newsome v Bennie S Cohen & Son (Qld) Pty Ltd [1941] St R Qd 270 11.46 Nguyen v Taylor [1990] ANZ ConvR 588; BC9002311 4.25 Niak v Macdonald [2001] 3 NZLR 334 22.61 Nicholson, Re (1883) 53 LJ Ch 302 18.34 Nicholson v Chapman (1793) 2 H Bl 254; 126 ER 536 6.10 Nicobar Pty Ltd v Abrokiss Pty Ltd (2003) 48 ACSR 259; [2003] NSWSC 1247; BC200307988 18.32 Nightingale v Parsons [1914] 2 KB 621 16.5 Nigro v Wilson [1924] NZLR 834 15.24 NIML Ltd v MAN Financial Australia Ltd (2006) 15 VR 156; [2006] VSCA 128; BC200604416 20.2, 21.11, 22.3, 22.49, 22.50 Nitedals Taenstikfabrik v Bruster (1906) 75 LJ Ch 798 15.73 NMFM Property Pty Ltd v Citibank Ltd (No 10) (2000) 107 FCR 270; [2000] FCA 1558; BC200006827 1.4, 1.5, 1.31, 2.23, 4.12, 22.3 Noble v National Discount Co (1860) 5 H & N 225; 157 ER 1167 23.54 Nominal Defendant v Kisse (2001) Qld Lawyer Reps 110; [2001] QDC 290 25.19 Noonan v Martin (1987) 10 NSWLR 402 25.19 Nordenfelt v Maxim Nordenfelt Guns and Ammunitions Co Ltd [1894] AC 353 25.30 Norfolk County Council v Secretary of State for the Environment [1973] 3 All ER 673 20.53 Norris v Sibberas [1990] VR 161 24.26 North & South Trust Co v Berkeley [1971] 1 All ER 980 8.16, 12.41, 12.42, 12.44 North Australian Territory Company, Re (Archer's case) [1892] 1 Ch 322 12.16

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North Sydney Investment and Tramway Co v Higgins [1899] AC 263 5.13 North v Loomes [1919] 1 Ch 378 4.28, 8.27 — v Marra Developments Ltd (1981) 148 CLR 42 10.32, 18.16 North Waterloo Farmers Mutual Insurance Co v Wylie (1989) 40 CCLI 227 24.21 Northside Developments Pty Ltd v RegistrarGeneral (1990) 170 CLR 146; BC9002916 8.31, 19.3, 20.7, 20.8, 20.64, 20.74, 20.75, 20.77 Northumberland Avenue Hotel Co, Re (1886) 33 Ch D 16 5.13 North-West Transportation Co Ltd v Beatty (1887) 12 App Cas 589 1.52 Norton Manning Real Estate Pty Ltd v Tucker [1990] ANZ ConvR 261; BC8900173 8.9, 11.13 Norwest Refrigeration Services Pty Ltd v Bain Dawes (WA) Pty Ltd (1984) 157 CLR 149; BC8400481 4.15, 11.24, 11.35, 11.46, 11.52, 11.53 Norwich Fire Insurance Society Ltd v Brennans (Horsham) Pty Ltd [1981] VR 981 1.35, 1.36 Nothintoohard Pty Ltd (in liq) v Dean-Willcocks (2007) 13 BPR 24,245; [2006] NSWCA 311; BC200609032 18.27 Nottingham v Aldridge [1971] 2 QB 739 1.1, 22.12, 22.40 Nouvelle Huileries Anversoises SA v H C Mann and Co (1924) 40 TLR 804 1.13 Nowrani Pty Ltd v Brown [1989] 2 Qd R 582 8.27, 8.28, 20.29 NT Power Generation Pty Ltd v Trevor (2000) 23 WAR 482; [2000] WASC 254; BC200006331 1.4, 4.13

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O Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Table of Cases > Table of Cases

O Please click on the link below to download the entire chapter. OBG Ltd v Allan [2008] 1 AC 1; [2007] UKHL 21 10.5 O'Brien v Tanning Research Laboratories Inc (1988) 14 NSWLR 601 1.47 Occidental Worldwide Investment Corp v Skibs A/S Avanti (The ‘Siboen’ and The ‘Sibotre’) [1976] 1 Lloyd's Rep 293 22.30 Ocean City Realty Ltd v A & M Holdings Ltd (1987) 36 DLR (4th) 94 11.11, 15.70 O'Connor v B D B Kirby & Co (a firm) [1972] 1 QB 90 22.25, 22.29 Octapon Pty Ltd v Esanda Finance Corporation Ltd (1989, unreported); BC8902608 1.31 Ocular Sciences Ltd v Aspect Vision Care Ltd [1997] RPC 289 12.60 Official Assignee of Madras v Mercantile Bank of India Ltd [1935] AC 53 21.17, 21.20 Ogdens v Nelson [1905] AC 109 25.13 Oglesby v Yglesias (1858) EB & E 930; 120 ER 756 23.22 Oliver v Governor and Company of the Bank of England [1902] 1 Ch 610 23.82 Olympic Fire and General Reinsurance Co Ltd, Re [1920] 2 Ch 341 25.23 Olympic Holdings Pty Ltd v Lochel [2004] WASC 61; BC200401675 8.25 Omaha Indemnity Company v Carpenter and Australian Transport Insurance Pty Ltd (1988) 5 ANZ Ins Cas ¶60831; BC8700466 19.33, 19.46 Onsite Contractors Pty Ltd v Old Charter Insurance Co Ltd (1985) 3 ANZ Ins Cas ¶60-632; BC8500819 11.25, 11.50 Oppenheimer v Attenborough & Son [1907] 1 KB 510 21.22 — v — [1908] 1 KB 221 21.15, 21.20, 21.22, 21.25, 21.27, 21.28, 21.30 — v Frazer & Wyatt [1907] 1 KB 519 21.26, 21.27 — v Oppenheimer (1872) 3 AJR 60 7.7 Option Investments (Aust) Pty Ltd v Martin [1981] VR 138 1.38, 7.31, 11.1, 23.12

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Optus Networks Pty Ltd v Horman [2010] VSC 108; BC201001801 2.12, 4.13 Orbit Mining and Trading Co Ltd v Westminster Bank Ltd [1963] 1 QB 794 21.11 O'Reilly v Commissioners of the State Bank of Victoria (1983) 153 CLR 1 3.21 — v Law Society of New South Wales (1988) 24 NSWLR 204 12.39 Oriental Bank Corporation, Re (1884) 28 Ch D 634 25.38 Oriental Inland Steam Co, Re (1874) 9 Ch App 577 2.13 Oris Funds Management Ltd v National Australia Bank Ltd (2005) 14 VR 189; [2005] VSCA 148; BC200504215  21.11 Orix Australia Corporation Ltd v McCormick (2005) 145 FCR 244; [2005] FCA 1032; BC200505464 7.8 — v Moody Kiddell & Partners Pty Ltd [2006] NSWCA 257; BC200607698 24.31 Osborne v Australian Mutual Growth Fund [1972] 1 NSWLR 100 8.14 — v Synnot (1877) 3 VLR (L) 148 7.18 Oskar United Group Inc v Chee (2012) ACWS (3d) 721; [2012] ONSC 1545 4.7 Osman v J Ralph Moss Ltd [1970] 1 Lloyd's Rep 313 11.49 O'Sullivan v Downer [1915] QWN 17 15.5 Oswal v Burrup Holdings Ltd (2011) 281 ALR 432; [2011] FCA 609; BC201103663 3.21, 3.30 Otway Coal Co Ltd, Re [1953] VLR 557 18.33 Overbrooke Estates Ltd v Glencombe Properties Ltd [1974] 3 All ER 511 20.28 Overmyer Industrial Brokers Pty Ltd v Campbells Cash & Carry Pty Ltd (2003) ATPR (Digest) ¶46-242; [2003] NSWCA 305; BC200306233 17.5, 17.14 Overton v Phillips [1912] VLR 143 16.14 Owens v Harris Bros (1932) 34 WALR 110 20.16 Owners Corporation Strata Plan 62285 v Betona Corporation (NSW) Pty Ltd [2006] NSWSC 216; BC200602046  20.57 Owners - Strata Plan No 53441 v Walter Construction Group Ltd (2004) 62 NSWLR 169; [2004] NSWCA 429; BC200408103 1.7, 2.12, 4.11 Owston Nominees No 2 Pty Ltd v Clambake Pty Ltd (2011) 248 FLR 193; [2011] WASCA 76; BC201101659 22.63 Ox Operations Pty Ltd v Land Mark Property Developments (Vic) Pty Ltd (in liq) [2007] FCA 1221; BC200706519  5.51, 5.52 Oxford Corporation v Crow [1893] 3 Ch 535 5.26

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Oxford Realty Ltd v Annette (1961) 29 DLR (2d) 299 25.22 O/Y Wasa Steamship Co Ltd and NV Stoomschip ‘Hannah’ v Newspaper Pulp & Wood Export Ltd (1949) 82 Lloyd's Rep 936 19.38

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P Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Table of Cases > Table of Cases

P Please click on the link below to download the entire chapter. P & V Industries Pty Ltd v Porto (2006) 14 VR 1; [2006] VSC 131; BC200601896 10.8 — v — (No 2) [2007] VSC 64; BC200701691 10.8 Pace v Antlers Pty Ltd (in liq) (1998) 80 FCR 485 1.47 Pacific & General Insurance Company Ltd v Hazell [1997] 6 Re LR 157 5.50 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35; BC200404838 7.5, 20.21, 20.22, 20.25, 20.32, 20.33 Pacific Drive-In Theatres Pty Ltd v Theatres and Films Commission and Northern Amusements Corporation Pty Ltd [1956] LGR 237 5.23, 5.24 Pacific & General Insurance Company Ltd v Hazell [1997] LRLR 65 25.19 Paddle Bros Pty Ltd v Keith Britter Pty Ltd [1957] SR (NSW) 423 25.29, 25.30 Paice v Walker (1870) LR 5 Ex 173 23.14, 23.18 Palandri Wines Ltd v O'Donnell [2002] WASC 123 (S); BC200207491 1.17, 15.17 Palette Shoes Pty Ltd v Krohn (1937) 58 CLR 1 2.11 Palios Meegan & Nicholson Holdings Pty Ltd v Shore (2010) 108 SASR 31; [2010] SASCFC 21; BC201006247  11.32 Palk v Mortgage Services Funding plc [1993] Ch 330 1.44 Panama and South Pacific Telegraph Co v India Rubber, Gutta Percha & Telegraph Works Co (1875) LR 10 Ch App 515 12.12, 12.14, 12.18, 12.41, 19.25, 19.27 Panorama Developments (Guildford) Ltd v Fidelis Furnishing Fabrics Ltd [1971] 2 QB 711 8.38, 22.71 Pantland Hick v Raymond & Reid [1893] AC 22; Monkland v Jack Barclay Ltd [1951] 2 KB 252 11.1 Pape v Westacott [1894] 1 QB 272 8.10, 13.8 Pappas v Soulac Pty Ltd (1983) 50 ALR 231 24.30 Parkdale, The [1897] P 53 12.12 Parker, Re (1882) 21 Ch D 408 7.2

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Parker v Higgins [2012] NSWSC 1516; BC201209588 2.12, 13.1 — v McKenna (1874) LR 10 Ch App 96 10.9, 10.12, 19.27 — v Summergreene (1949) 50 SR (NSW) 5 23.61 — v Winlow (1857) 7 E & B 942; 119 ER 1497 23.14, 23.22 Parkin v Williams [1986] 1 NZLR 294 1.30, 7.7, 7.10, 9.19, 9.20 Parks, Re (1956) 8 DLR (2d) 155 25.38 Parr v Fisher (1879) 13 SALR 17 15.5 Parry v Roberts (1835) 3 Ad & El 118; 111 ER 358 13.10 Passingham v King (1898) 14 TLR 392 15.23, 16.15 Paterson v Clarke (2002) 11 BPR 20,781; [2002] NSWSC 1206; BC200207710 7.15 — v McCallum [1921] NZLR 869 15.67, 18.14, 19.1, 19.3 — v Tash (1743) 2 Str 1178; 93 ER 1110 21.17 Patience, Ex parte (1940) 40 SR (NSW) 96 18.32 Patry v General Motors Acceptance Corp of Canada Ltd (2000) 187 DLR (4th) 99 21.31 Pattern v Ruddall (1881) 7 VLR (L) 148 5.29 Paul S Starr & Co Ltd v Watson (1972) 30 DLR (3d) 424 11.23, 15.67 Pauling v London and North Western Railway Co (1853) 8 Ex 867 5.29 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; BC8701760 15.80 Payne v Lord Leconfield (1882) 51 LJQB 642 8.23 Peacock v Tarleton (1928) 28 SR (NSW) 561 15.2, 15.65 Pearse v Green (1819) 1 Jac & W 135; 37 ER 327 13.1 Pearson & Son Ltd v Dublin Corporation [1907] AC 351 22.30, 24.9 Pearson v Executors of Wilson (decd) [1917] QWN 49 23.47 — v Rose & Young Ltd [1951] 1 KB 275 21.25, 21.29 — v Scott (1879) 9 Ch D 198 8.10 Peat Resources of Australia Pty Ltd, Re (2004) 181 FLR 454; [2004] WASCA 122; BC200403555 4.33

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Peat v Clayton [1906] 1 Ch 659 18.41 Pedersen v Larcombe [2008] NSWSC 1362; BC200811279 12.28 Peirce v Corf (1874) LR 9 QB 210 8.22, 9.21, 11.1 Pemberton v Action Realty Ltd [1986] 1 NZLR 286 8.9, 15.75 Pembroke Antiques Pty Ltd v SPA Property and Investment Co Pty Ltd (1992, unreported); BC9303540 22.33 Peninsular and Oriental Steam Navigation Co v Johnson (1938) 60 CLR 189; BC3890124 12.7, 12.32, 12.34, 13.12, 15.69, 15.73 Penn v Bristol and West Building Society [1997] 3 All ER 470 23.82, 23.83, 23.93 Pennant Hills Restaurants Pty Ltd v Barrell Insurances Pty Ltd (1981) 145 CLR 625; BC8100061 11.55 Percy v Glasgow Corporation [1922] AC 299 8.12 Perishables Transport Company Ltd v N Spyropoulos (London) Ltd [1964] 2 Lloyd's Rep 379 1.49, 18.8, 23.14 Perkins v National Australia Bank (1999) 30 ACSR 256; [1999] SASC 39; BC9900286 8.43 — v — (1999) 74 SASR 68; [1999] SASC 280; BC9905106 Permanent Mortgages Pty Ltd v Vandenbergh (2010) 41 WAR 353; [2010] WASC 10; BC201000198 22.63 Permanent Trustee Australia Co Ltd v FAI General Insurance Co Ltd (2001) 50 NSWLR 679; [2001] NSWCA 20; BC200100790 22.63, 22.65 — v FAI General Insurance Co Ltd (in liq) (2003) 214 CLR 514; [2003] HCA 25; BC200302168 22.63, 22.65 Permanent Trustee Co (Canberra) Ltd v Stocks & Holdings (Canberra) Pty Ltd (1976) 28 FLR 195 23.79 Permanent Trustee Co Ltd v Bernera Holdings Pty Ltd (2004) 182 FLR 431; [2004] NSWSC 56; BC200400430  5.31 — v O'Donnell (2009) 15 BPR 28,101; [2009] NSWSC 902; BC200908096 1.32 Perochinsky v Kirschner (2013) 16 BPR 31,481; [2013] NSWSC 400; BC201302003 10.10 Perpetual Trustee Co Ltd v Aroney (1944) 44 SR (NSW) 313 25.22, 26.8 — v Bligh (1940) 41 SR (NSW) 33 19.30, 19.35, 23.42 — v Gibson [2013] NSWSC 276; BC201301492 10.10 — v Nebo Road Pty Ltd [2011] QSC 283; BC201107522 19.2 Perpetual Trustees Australia Ltd v Bank of Western Australia Ltd (2004) 50 ACSR 34; [2004] QSC 213; BC200404534 25.19 — v Heperu Pty Ltd (2009) 76 NSWLR 195; [2009] NSWCA 84; BC200903119 20.46, 21.7

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— v Schmidt [2010] VSC 67; BC201002712 1.6, 1.31, 4.13 Perry v Barnett (1885) 15 QBD 388 8.16 — v Holl (1860) 2 De GF & J 38 7.8 Peso Silver Mines Ltd v Cropper (1966) 58 DLR (2d) 1 12.5 Petch v Lyon (1846) 9 QB 147; 115 ER 1231 22.68 Peter Long & Partners v Burns [1956] 3 All ER 207 15.71 Petersen v Moloney (1951) 84 CLR 91 1.2, 1.28, 5.27, 8.7, 23.70, 23.75, 23.78 Peterson Farms Inc v C & M Farming Ltd [2004] 1 Lloyd's Rep 603; [2004] EWHC 21 (Comm) 2.26 Petrinovic & Co Ltd v Mission Francaise des Transports Maritimes (1941) 71 Lloyd's LR 208 6.10, 18.8 Petrotrade Inc v Smith [2000] 1 Lloyd's Rep 486 12.12, 12.19, 22.46 Pettigrew v Klumpp and Klumpp [1942] St R Qd 131 15.20, 15.26 Pettman v Keble (1850) 9 CB 701; 137 ER 1067 18.13 Philippa Power & Associates v Primrose Couper Cronin Rudkin [1997] 2 Qd R 266 18.24, 18.32 Phillips v Butler [1945] Ch 358 8.20, 8.21 — v Duke of Bucks (1683) 1 Vern 227; 23 ER 432 19.36 — v Homfray (1871) LR 6 Ch App 770 5.31 Phillipson v Hayter (1870) LR 6 CP 38 6.12 — v Indus Realty Pty Ltd (2004) 8 VR 446; [2004] VSCA 61; BC200402041 15.27 Phillip-Stephan Photo Litho and Typographic Process Co Ltd, Re (1890) 12 LR (NSW) Eq 4 11.7, 22.54, 22.55, 22.63 Phipps v Boardman [1965] Ch 992 12.2 Phoenix Assurance Co Ltd v Berechree (1906) 3 CLR 946; BC0600038 19.3, 22.26 Pianta v National Finance & Trustees Ltd (1964) 180 CLR 146; BC6400840 8.27, 20.60 Picea Holdings Ltd v London Rent Assessment Panel [1971] 2 QB 216 4.35 Pickering v Busk (1812) 15 East 38; 104 ER 758 8.6, 20.2, 21.15, 21.17 Pickersgill v Tsoukalas (2009) 266 LSJS 331; [2009] SASC 357; BC200910736 22.49 Piddocke v Burt [1894] 1 Ch 343 10.17

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Pilmer v Duke Group Ltd (in liq) (2001) 207 CLR 165; [2001] HCA 31; BC200102754 12.6 Piper Group (1978) Ltd v Shearson Equities Ltd (1986) 78 NSR (2d) 413 20.46 Pitt Son & Badgery Ltd v Proulefco SA (1984) 153 CLR 644; BC8400515 2.15 Pole v Leask (1860) 28 Beav 562; 54 ER 481 4.21, 7.5, 8.2 — v Leask (1863) 8 LT 645 1.10, 4.2, 4.4, 4.7, 4.21, 7.5, 8.2, 20.3 Polkinghorne v Holland (1934) 51 CLR 143; BC3400018 8.25, 19.3, 22.7 Pollard v Bank of England (1871) LR 6 QB 623 23.51 Pontin v Wood [1962] 1 QB 594 5.52 Pople v Evans [1969] 2 Ch 255 2.12, 19.29, 19.31 Port of Brisbane Corporation v ANZ Securities Ltd (No 2) [2003] 2 Qd R 661; [2002] QCA 158; BC200202254  23.51 Portavon Cinema Co Ltd v Price and Century Insurance Co Ltd [1939] 4 All ER 601 5.45 Portland Downs Pastoral Co Pty Ltd v Great Northern Developments Pty Ltd [2012] QCA 18; BC201200932 22.60 Portman Building Society v Hamlyn Taylor Neck [1998] 4 All ER 202 19.14, 23.51 Portuguese Consolidated Copper Mines Ltd, Re (1890) 45 Ch D 16 5.23 Potter v Customs and Excise Commissioners [1985] STC 45 2.5 — v Fowler (1837) 6 LJ Ch 273 13.9 Potters (a firm) v Loppert [1973] Ch 399 2.16, 2.18, 23.48 Poulet Frais Pty Ltd v Silver Fox Company Pty Ltd (2005) 220 ALR 211; [2005] FCAFC 131; BC200505073 7.3 Powell & Thomas v Evan Jones & Co [1905] 1 KB 11 9.5, 9.6, 9.16, 12.2, 12.16 Powell v Bickford [1969] WAR 195 7.22, 8.10 — v Braun [1954] 1 All ER 484 15.3 — v London & Provincial Bank [1893] 2 Ch 555 4.22 — v Smith (1872) LR 14 Eq 85 5.19 — v Thompson [1991] 1 NZLR 597 10.9, 12.5, 24.5 Powercor Australia Ltd v Pacific Power [1999] VSC 110; BC9907547 2.19, 5.29, 5.46, 7.5, 8.3, 20.34 Prager v Blatspiel, Stamp & Heacock Ltd [1924] 1 KB 566 6.2, 6.3, 6.4, 6.5, 6.6, 6.10

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Pratt v Gee [1959] SR (NSW) 81 16.18 Pratten v Pratten [2005] QCA 213; BC200504060 12.3 Prebble v Evans [1910] VLR 88 10.21, 13.23 Premier Building and Consulting Pty Ltd v Spotless Group Ltd (2007) 64 ACSR 114; [2007] VSC 377; BC200708532 2.27 Premier International Holdings Inc, Re 423 BR 58 1.4 Premium Real Estate Ltd v Stevens [2009] 2 NZLR 384; [2008] NZSC 15 11.10, 11.12, 12.54, 15.70 Prentis Donegan & Partners Ltd v Leeds & Leeds Co [1998] 2 Lloyd's Rep 326 9.10, 9.11, 9.12 Presentaciones Musicales SA v Secunda [1994] Ch 271 5.40, 5.41, 5.42, 5.44, 5.50, 5.51, 5.52 Presrod Pty Ltd v Wollongong City Council [2010] NSWLEC 192; BC201007426 8.31 Press v Mathers [1927] VLR 326 4.12 Presser v Caldwell Estates Pty Ltd [1971] 2 NSWLR 471 7.21, 22.22, 22.34, 24.24 Prestwich v Poley (1865) 18 CBNS 805 1.39 Price, Davies & Co v Smith (1929) 141 LT 490 15.14, 15.27 Price v Metropolitan House Investment and Agency Co Ltd (1907) 23 TLR 630 10.3, 10.5 Prickett v Badger (1856) 1 CBNS 296; 140 ER 123 15.78 Priestley v Fernie (1865) 3 H & C 977; 159 ER 820 19.11, 23.69, 23.70, 23.72 Prince Blücher, Re [1931] 2 Ch 70 3.16, 3.20 Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222 10.21, 12.6 Prince v Clark (1823) 1 B & C 186; 107 ER 70 5.23, 5.32 Pringle of Scotland Ltd v Continental Express Ltd [1962] 2 Lloyd's Rep 80 1.49 Pringle v McKay [1922] NZLR 818 5.53 Prints for Pleasure Ltd v Oswald-Sealy (Overseas) Ltd (1968) 88 WN (NSW) (Pt 1) 375 25.6, 25.11, 25.14 Prior v Moore (1877) 3 TLR 624 7.16, 7.18 Proactive Sports Management Ltd v Rooney [2012] 2 All ER (Comm) 815; [2011] EWCA Civ 1444 15.54 Progressive Agency v Bennett [1928] NZLR 100 15.75 Prospect Industries Pty Ltd v Anscor Pty Ltd [2003] QSC 296; BC200305228 20.46

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Proudfoot v Montefiore (1867) LR 2 QB 511 22.52 Provan v HCL Real Estate Ltd [1993] ANZ ConvR 144; BC9201518 11.11 Provident Capital Ltd v Papa [2013] NSWCA 36; BC201300843 1.31 Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 11.25, 11.43, 11.46, 11.54 Provincial Insurance Co of Canada v Leduc (1874) LR 6 PC 224 23.8 Prudential Assurance Co Ltd v Rodrigues [1982] 2 NZLR 54 15.86, 15.87, 25.33 Pryke v Gibbs Hartley Cooper Ltd [1991] 1 Lloyd's Rep 602 10.14 Pryor v Given (1980) 30 ALR 189 24.29 Public Trustee of Queensland v Ban [2011] QSC 380; BC201109623 10.10 Public Trustee v Taylor [1978] VR 289 23.11, 23.56 Pulford v Loyal Order of Moose (1913) 14 DLR 577 5.32 Pulkownik v Public Trustee [1979] 1 NSWLR 716 20.1, 21.34, 21.35, 21.36 Punjab National Bank v de Boinville [1992] 3 All ER 104 11.23, 23.21, 24.19 Purcell v Bacon (1914) 19 CLR 241 25.34 Purdon, Estate of (1935) 53 WN (NSW) 148 3.31 Pyxis Special Shipping Co Ltd v Dristas & Kaglis Bros Ltd (The ‘Scaplake’) [1978] 2 Lloyd's Rep 380 19.38, 23.74

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Q Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Table of Cases > Table of Cases

Q Please click on the link below to download the entire chapter. Qintex Ltd (No 2), Re (1990) 2 ACSR 479; BC9000075 8.36 QNS Paper Co v Chartwell Shipping Ltd (1989) 62 DLR (4th) 36 23.10, 23.13, 23.18, 23.19, 23.43, 23.44 Quarante Pty Ltd v Owners Strata Plan No 67212 (2009) NSW Titles Cases ¶80-128; [2008] NSWCA 258; BC200810046 5.7 Quatrovision Pty Ltd (in liq), Re [1982] 1 NSWLR 95 1.47, 19.37, 19.39 Quebec & Richmond Railway Co v Quinn (1858) 12 Moo PC 232; 14 ER 899 9.3 Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266; BC6600470 20.74 Queensland Investment and Land Company (Ltd) v O'Connell and Palmer (1896) 12 TLR 502 12.41 Quek v Chan [2004] VSC 394; BC200406688 1.17, 15.17 Quest Rose Hill Pty Ltd v White [2010] NSWSC 939; BC201006067 26.8 Quikfund (Australia) Pty Ltd v Prosperity Group International Pty Ltd (in liq) (2013) 209 FCR 368; [2013] FCAFC 5; BC201300216 1.31, 4.4 Quirk v Winter [1920] NZLR 98 7.17

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R Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Table of Cases > Table of Cases

R Please click on the link below to download the entire chapter. R and E Tingey and Company Ltd v John Chambers and Company Ltd [1967] NZLR 785 8.11 R D Mackinnon Holdings Pty Ltd v Hind [1984] 2 NSWLR 121 26.4 R J Mabarrack Pty Ltd v King (1971) 1 SASR 313 15.21, 15.26, 15.27, 15.28, 15.29, 15.30, 15.33, 15.62, 15.79 R L Time Realty Ltd v R & R Realty Pty Ltd (1996) 39 NSWLR 24; BC9600164 17.24 R v Biggin [1955] VLR 36 22.55, 22.61 — v Board of Trade [1965] 1 QB 603 1.44, 1.45 — v Brown (1912) 14 CLR 17; BC1200067 21.5 — v Burchill and Salway [1947] St R Qd 249 3.17, 3.20, 3.24 — v Butcher (1858) Bell CC 6; 169 ER 1145 24.40 — v Byrnes (1995) 183 CLR 501; BC9506451 12.46 — v Calland [1967] Crim LR 236 14.11 — v Carr [1957] 1 WLR 165 14.13 — v Cobcroft 14.6 — v Cunningham [2010] 1 SCR 331; [2010] SCC 10 11.35 — v Dickinson (1948) 33 Cr App R 5 14.7 — v Dillon and Riach [1982] VR 434 14.13 — v Gallagher [1986] VR 219 14.4, 14.7, 14.12, 14.13 — v Gallagher (1987) 29 A Crim R 33; BC8700523 14.13, 14.16 — v Gross [1946] OR 1 14.13 — v Holt (1983) 12 A Crim R 1 26.4 — v Inhabitants of Longnor (1833) 4 B & Ad 647; 110 ER 599 4.22 — v Jamieson [1988] VR 879 14.13, 14.15

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— v Japaljarri (2002) 134 A Crim R 261; [2002] VSCA 154; BC200205806 11.35 — v Justices of Kent (1873) LR 8 QB 305 3.19, 3.20, 3.21 — v Keane (1929) 30 SR (NSW) 63 14.1 — v Lindley [1957] Crim LR 321 14.11 — v Mills (1978) 68 Cr App R 154 14.13 — v Nuttall [2011] 1 Qd R 270; [2010] QCA 64; BC201001521 14.6, 14.13 — v Registrar of Titles (1921) 27 ALR 236 7.10 — v Smith [1960] 2 QB 423 14.13 — v Stevenson [1907] VLR 475 14.13 — v Turner (2001) 25 WAR 258; [2001] WASCA 344; BC200106846 14.13 — v Wait (1823) 11 Price 518; 147 ER 551 26.4 — v Walker (1858) Dears & B 600; 169 ER 1136 1.18 — v Wellburn, Nurdin and Randel (1979) 69 Cr App R 254 14.1, 14.13 — v Worthington [1921] VLR 660 14.13 R W Management Pty Ltd v Rickard (1986) 13 Qld Lawyer Reps 95 15.40 RA Price Securities Ltd v Henderson [1989] 2 NZLR 257 1.44 Raclaw v Fay, Conmy and Co, 668 NE 2d 114 (Ill App Ct 1996) 20.46 Raffoul v Esanda Ltd [1970] 3 NSWR 8 11.21, 20.1 Rail Signalling Services Pty Ltd v Victorian Rail Track [2012] VSC 452; BC201207467 3.26 Railway Commissioners for New South Wales v Orton (1922) 30 CLR 422; BC2200027 23.3 Rainbow v Howkins [1904] 2 KB 322 8.19 Rama Corp Ltd v Proved Tin & General Investments Ltd [1952] 2 QB 147 4.2, 20.3, 20.7, 20.8, 20.53 Rankin v Palmer (1912) 16 CLR 285; BC1200010 18.8, 18.11 Rapid Road Transit Company, Re [1909] 1 Ch 96 18.30 Rasmussen & Russo Pty Ltd v Gaviglio [1982] Qd R 571 16.2, 16.5, 16.18, 16.20 Raso v Dionigi (1993) 100 DLR (4th) 459 12.43, 12.44, 12.50, 15.70, 19.5 Rawlinson & Brown Pty Ltd v Witham [1996] ANZ ConvR 234; BC9504448 24.24, 24.26

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Rayner v Grote (1846) 15 M & W 359; 153 ER 888 23.6 — v Paskell and Cann [1971] 2 QB 439n; (1948) 152 EG 270 2.17, 23.48 Read v Anderson (1884) 13 QBD 779 25.2 Reading v Attorney-General [1951] AC 507 10.12 — v The King [1949] 2 KB 232 12.14 Real Estate and Business Agents Supervisory Board, Re (1999) 21 WAR 158; [1999] WASCA 47; BC9903157  13.22 Real Estate and Business Agents Supervisory Board v Cohen (2004) 28 WAR 475; [2004] WASCA 19; BC200400378 13.22 Reberger v Davis (1998) 55 NSWLR 7; BC9800593 23.56 Reckitt v Barnett, Pembroke and Slater Ltd [1928] 2 KB 244 7.33, 10.9, 10.10 — v — [1929] AC 176 7.11, 10.9, 20.5, 20.38, 20.39 Rederiaktiebolaget Argonaut v Hani [1918] 2 KB 247 19.37 Redglove Holdings Pty Ltd v Kindy 4 Kids (Australia) Pty Ltd [1995] ANZ ConvR 385; BC9403362 23.54 Reese River Silver Mining Co v Smith (1869) LR 4 HL 64 19.16 Refuge Assurance Co Ltd v Kettlewell [1909] AC 243 19.16 Regal (Hastings) Ltd v Gulliver [1967] 2 AC 134 12.5 Regier v Campbell-Stuart [1939] Ch 766 12.32 Registrar-General v Northside Developments Pty Ltd (1988) 14 NSWLR 571 20.74 Reid v Alaska Packing Co, 83 Pac 139 5.31 — v Bennett [1955] VLR 505 13.9, 23.46 Reigate v Union Manufacturing Co (Ramsbottom) Ltd [1918] 1 KB 592 25.11, 25.13 Remuneration Database Pty Ltd v Pauline Goodyear Real Estate Pty Ltd [2007] NSWSC 59; BC200700498 17.24 Republic of Peru v Peruvian Guano Co (1887) 36 Ch D 489 5.53 Rest-Ezi Furniture Pty Ltd v Ace Shohin (Australia) Pty Ltd (1986) 5 ACLC 10; BC8600666 11.9 Rexstraw v Johnson [2003] NSWCA 287; BC200306049 10.19 Reynell v Lewis (1846) 15 M & W 517; 153 ER 954 4.1, 7.4, 19.6, 20.3, 20.5, 20.29 Reynolds Bros (Motors) Pty Ltd v Esanda Ltd (1983) 8 ACLR 422 21.28

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Reynolds v Howell (1873) LR 8 QB 398 5.51 Rhodes Pty Ltd v Galati [1961] WAR 180 4.21, 7.20, 7.25, 20.28 Rhodes v Fielder, Jones and Harrison [1918] All ER Rep 846 18.12 — v Forwood (1876) 1 App Cas 256 25.12, 25.13 — v Macalister (1923) 29 Com Cas 19 10.7, 15.69, 15.70 Rhodian River Shipping Co SA v Halla Maritime Corporation (The ‘Rhodian River’ and ‘Rhodian Sailor’) [1984] 1 Lloyd's Rep 373 20.51 Rianham Chemical Works Ltd v Belvedere Fish Guano Co Ltd [1921] 2 AC 465 24.10 Rice v Mutch (1900) 16 WN (NSW) 211 15.43 Richard Brady Franks Ltd v Price (1937) 58 CLR 112; BC3700026 20.81 Richards v Hill (1920) 39 NZLR 724 23.50 Richardson v Martin (1882) 16 SALR 44 18.9 — v Norris Smith Real Estate Ltd [1977] 1 NZLR 152 22.22, 22.34, 24.24, 24.25 — v Silvester (1873) LR 9 QB 34 24.23 — v Williamson (1871) LR 6 QB 276 23.91 Ricketson v Dean and Laughton (1870) 4 SALR 78 5.19, 5.35 Ridgway v Lees (1856) 25 LJ Ch 584 18.37 Riltang Pty Ltd v L Pty Ltd (2002) 12 BPR 20,281; [2002] NSWSC 625; BC200203933 8.30 Rimmer v Webster [1902] 2 Ch 163 21.3, 21.15 Rita Joan Dairies Ltd v Thomson [1974] 1 NZLR 285 23.59, 23.60, 23.63 Riteway Express Pty Ltd v Clayton (1987) 10 NSWLR 238 12.58 Rivers v Minister of Education (1975) 12 SASR 321 15.79 Rivoli Hats Ltd v Gooch [1953] 2 All ER 823 15.86, 15.87, 15.88, 15.89 RMKRM v MRMVL [1926] AC 761 23.69 Roach v Hough [1926] St R Qd 24 17.15 Roache v Australian Mercantile Land & Finance Co Ltd (1966) 67 SR (NSW) 54 20.1, 20.2, 21.20, 21.22, 21.26, 21.32 Robbie & Co Ltd v Witney Warehouse Co Ltd [1963] 3 All ER 613 1.44

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Robbins v Fennell (1847) 11 QB 248; 116 ER 468 9.10 Roberts v Elwells Engineers Ltd [1972] 2 QB 586 15.54, 15.55 Robertson v Fauntleroy (1823) 8 Moo CP 10 23.54 Roberts-Szudzinski Pty Ltd v au Domain Administration Ltd [2006] NSWSC 950; BC200607732 20.74 Robin Line Steamship Co v Canadian Stevedoring Co [1928] 3 DLR 856 20.13 Robinson v Eves [1917] SALR 70 15.14 — v Harkin [1896] 2 Ch 415 3.31 — v Mollett (1875) LR 7 HL 802 8.15, 10.15 — v Rutter (1855) 4 El & Bl 954; 119 ER 355 18.23, 23.8 — v Tyson (1888) 9 LR (NSW) L 297 1.11, 20.7, 20.15, 20.31 Robson v Kemp (1802) 4 Esp 233; 170 ER 703 18.41 Rocco Pezzano Pty Ltd v Unity Insurance Brokers Pty Ltd (1995) 8 ANZ Ins Cas ¶61-288; BC9504181 11.43 Rockett v Moneycorp Securities Pty Ltd [2007] QSC 389; BC200711540 12.26 Rodale Press Inc v Webster Industries Ltd and Coast Communications Ltd (1983) 47 NBR (2d) 328 2.22 Rodick v Gandell (1852) 1 De GM & G 763; 42 ER 749 23.55 Rogers, Re (1880) 15 Ch D 207 18.8 Rogers, Sons & Co v Lambert & Co [1891] 1 QB 318 13.24 Rolland v Hart (1871) LR 6 Ch App 678 22.50, 22.54 Rolls Razor Ltd v Cox [1967] 1 QB 552 1.23, 18.42 Ronald v Harper [1913] VLR 311 22.47 — v Lalor (1872) 3 VR (E) 98 4.23, 5.26, 7.25 Rooke v Lord Kensington (1856) 2 K & J 753 7.8 Root Quality Pty Ltd v Root Technologies Pty Ltd (2000) 177 ALR 231; [2000] FCA 980; BC200004287 24.10 Roots v Oentory Pty Ltd [1983] 2 Qd R 745 10.3, 24.24 Rose v Lowe (1900) 2 WALR 24 11.18 Rosenbaum v Belson [1900] 2 Ch 267 7.13, 7.14, 7.19, 7.20 Rosetex Company Pty Ltd v Licata (1994) 12 ACSR 779; BC9402358 12.46

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Ross McCartin Realty v Chard Holdings Pty Ltd [1989] 2 Qd R 591 15.26, 15.64, 16.25, 17.15 — v — (No 2) [1991] 1 Qd R 182 17.15 Ross River Ltd v Cambridge City Football Club Ltd [2008] 1 All ER 1004; [2007] EWHC 2115 (Ch) 12.12 Rossetti Marketing Ltd v Diamond Sofa Company Ltd [2013] Bus LR 543; [2012] EWCA Civ 1021 12.54, 12.55 Rothschild v Brookman (1831) 1 Dow & Cl 188 10.6 Rowe v B & R Nominees Pty Ltd [1964] VR 477 1.11, 5.8, 5.15 — v Norrie (1914) 33 NZLR 274 7.26 Roxburgh v Cox (1881) 17 Ch D 520 13.9 Royal Bank of Scotland v Etridge (No 2) [1998] 4 All ER 705 22.44, 22.50 — v — (No 2) [2002] 2 AC 773 22.44 Royal British Bank v Turquand (1856) 6 El & Bl 327; 119 ER 886 8.44, 20.74, 20.76 Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 24.6 Royal-Globe Life Assurance Co Ltd v Kovacevic (1979) 22 SASR 78 22.13, 22.47 Ruben v Great Fingall Consolidated [1906] AC 439 8.38, 20.7, 20.29, 20.32, 20.50, 22.47 Rummery v Dorsman [1996] ANZ ConvR 513; BC9600236 23.81, 23.89 Rusholme and Bolton and Roberts Hadfield Ltd v S G Read & Co (London) Ltd [1955] 1 All ER 180 1.14, 1.15, 23.10, 23.11, 23.39 Russo v Dupree (1989) 217 ALR 54; BC8902606 23.32 Russo-Chinese Bank v Li Yau Sam [1910] AC 174 20.29, 20.39 Rutter v Linton (1934) 35 SR (NSW) 132 23.44 Ryan v Ann St Holdings Pty Ltd [2006] 2 Qd R 486; [2006] QCA 217; BC200604344 22.15 — v Dangar (1885) 6 LR (NSW) L 67 23.3, 23.11, 23.18, 23.21 — v Horton (1911) 12 CLR 197; BC1190120 16.5 — v Pilkington [1959] 1 WLR 403 23.49 — v Sams (1848) 12 QB 460; 116 ER 940 25.46 — v Starr (2005) 12 BPR 22,803; [2005] NSWSC 170; BC200501394 8.27 Ryder v Osler, Wills Bickle Ltd (1985) 13 DLR (4th) 80 5.20

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Rymark Australia Development Consultants Pty Ltd v Draper [1977] Qd R 336 8.27

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S Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Table of Cases > Table of Cases

S Please click on the link below to download the entire chapter. S A Joseph and Rickard Ltd v Lindley (1906) 3 CLR 280; BC0500017 9.1, 9.2, 23.15 S Gormley & Co Pty Ltd v Cubit [1964] NSWR 557 24.23 S v Attorney-General [2003] 3 NZLR 450; [2003] NZCA 149 4.11, 22.15 Sabourin v LBC Inc, 731 F Supp 1151 (DRI 1990) 3.3, 5.14 Sachs v Miklos [1948] 2 KB 23 6.3, 6.4, 6.6, 6.8, 6.9 Sadler, Re (1881) 19 Ch D 86 13.25 Sadler v Evans (1766) 4 Burr 1984; 98 ER 34 23.51 Saffron Walden Second Benefit Building Society v Rayner (1880) 14 Ch D 406 8.30, 22.55 Said v Butt [1920] 3 KB 497 19.43, 19.44 Saints Gallery Pty Ltd v Plummer (1988) 80 ALR 525 24.30, 24.36 Salamon Nominees Pty Ltd v Moneywood Pty Ltd (1999) Q ConvR ¶54-525; BC9807212 16.6, 17.15, 17.18, 17.19 Salford Corpn v Lever [1891] 1 QB 168 12.18 Salim v Ingham Enterprises Pty Ltd (1998) 55 NSWLR 7; BC9800593 23.56 Salomon v A Salomon & Co Ltd [1897] AC 22 2.27 Salomons v Pender (1865) 3 H & C 639; 159 ER 682; 34 LJ Ex 95 12.36, 15.70 Salter v Cormie (1993) 108 DLR (4th) 372 23.1, 23.84, 23.86, 23.88, 23.90, 23.91 Salton v New Beeston Cycle Company [1900] 1 Ch 43 25.19 Samper v Hade (1889) 10 LR (NSW) L 270 1.19, 10.1 Samson v Aitchison [1912] AC 844 22.40 San Paulo (Brazilian) Railway Co v Carter [1896] AC 31 2.27 Sanders v Joseph [1949] VLR 235 15.13, 15.14, 15.83 Sandstone DMC Pty Ltd v Trajkovski [2006] NSWCA 205; BC200605689 22.15

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Sargent v ASL Developments Ltd (1974) 131 CLR 634; BC7400046 22.55, 22.63 Sarginson Bros v Keith Moulton & Co Ltd (1942) 73 Lloyd's Rep 104 11.28 Saunders v Leonardi (1976) 1 BPR 9409 7.3, 7.21, 7.24, 22.24 Savery v King (1856) 5 HL Cas 627; 10 ER 1046 5.19 Savill v Chase Holdings (Wellington) Ltd [1989] 1 NZLR 257 20.32, 20.44 Sawyer, Estate of v Crowell, 559 A 2d 687 (Vt 1989) 5.19 SBA Properties Ltd v Craddock [1967] 1 WLR 716 5.52 Scarf v Jardine (1882) 7 App Cas 345 20.36, 23.70 Scarfe v Morgan (1838) 4 M & W 270; 150 ER 1430 18.37 Schack v Anthony (1813) 1 M & S 573; 105 ER 214 23.35 Scheggia v Gradwell [1963] 3 All ER 114 15.35 Schiliro v Gadens Ridgeway (1995) 19 Fam LR 196 8.29 Schmaling v Tomlinson (1815) 6 Taunt 147; 128 ER 989 9.10 Schmaltz v Avery (1857) 16 QB 655; 117 ER 1031 23.6 Schroeder v Central Bank of London Ltd (1876) 34 LT 735 23.54, 23.55 Schultz v Corwill Properties Pty Ltd [1969] 2 NSWR 576 22.1, 22.57 Schumann v Abbott and Davis [1961] SASR 149 24.8 SCN Pty Ltd v Smith [2006] QCA 360; BC200607590 11.16 Scobie & Glover Engineering Pty Ltd v Scobie (2004) 13 Tas R 189; [2004] TASSC 116; BC200407055 3.20 Scots Church Adelaide Incorporated v Fead [1951] SASR 41 19.5 Scott v Bagshaw (1999) 92 FCR 424; [1999] FCA 674; BC9902583 5.29 — v Davis (2000) 204 CLR 333; [2000] HCA 52; BC200005826 1.2, 1.5, 10.9, 13.10, 19.1, 22.3, 22.5, 22.6, 22.41 — v Fernhill Stud Poultry Farm Pty Ltd [1963] VR 12 22.71 — v Scott (2012) 7 ASTLR 299; [2012] NSWSC 1541; BC201210837 3.2 — v Surman (1742) Willes 400 8.11 — v Willmore & Randell [1949] VLR 113 15.20, 15.21, 15.22, 15.23, 15.24, 15.25, 15.27, 15.32 Scottish Amicable Life Assurance Society v Reg Austin Insurances Pty Ltd (1985) 9 ACLR 909; BC8500779 23.21

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SEA Food International Pty Ltd v Lam (1998) 16 ACLC 552; BC9800437 12.46 Seabridge Australia Pty Ltd v JLW (NSW) Pty Ltd (1991) 29 FCR 415 24.37 Seah Boon Lock v Family Food Court [2007] 3 SLR(R) 362; [2007] SGHC 80 19.31 SEB Trygg Liv Holding Atkiebolag v Manches [2006] 1 All ER 437; [2005] EWCA Civ 1237 5.4, 5.29, 23.94 Seeley v Mercantile Bank of Australia (in liq) (1892) 18 VLR 485 2.10 Seivewright v Brennan (2005) 12 BPR 22,979; [2005] NSWSC 216; BC200501408 23.67 Selectmove Ltd, Re [1995] 1 WLR 474 19.24, 20.32 Sellers v London Counties Newspapers [1951] 1 KB 784 15.54, 25.32 Semenza v Brinsley (1865) 18 CBNS 467; 144 ER 526 19.14 789Ten Pty Ltd v Westpac Banking Corporation Ltd (2005) 215 ALR 131; [2005] NSWSC 123; BC200501177 1.4 Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) (1981) 150 CLR 225; BC8100102 11.37, 24.24 Shand v M J Atkinson Ltd (in liq) [1966] NZLR 551 18.24 Sharman v Brandt (1871) LR 6 QB 720 3.7, 23.6 Sharp v Sphere Drake Insurance plc (The ‘Moonacre’) [1992] 2 Lloyd's Rep 501 5.8, 11.5, 11.32 Shaw v Woodcock (1827) 7 B & C 73; 108 ER 652 1.13 Sheahan v Carrier Air Conditioning Pty Ltd (1997) 189 CLR 407; BC9703510 1.45 Sheffield Corporation v Barclay [1905] AC 392 23.82 Sheffield v Eden (1878) 10 Ch D 291 18.34 Sheggia v Gradwell [1963] 3 All ER 114 15.27 Shehata v Hussein [2004] NSWSC 617; BC200404333 8.31 Sheinkoph v Stone, 927 F 2d 1259 12.39 Shelton v Springett (1851) 11 CB 452; 138 ER 549 6.12 Sheonandan Prasad Singh v Abdul Fateh Mohammad Reza (1935) LR 62 Ind App 196 8.31 Shipway v Broadwood [1899] 1 QB 369 12.12 Shirlaw v Taylor (1991) 31 FCR 222; BC9103386 1.47 Short v Spackman (1831) 2 B & Ad 962; 109 ER 1400 23.6 Shortal v Buchanan [1920] NZLR 103 7.13, 7.26, 20.29

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Shropshire Union Railways and Canal Co v R (1875) LR 7 HL 496 21.6 Sibley v Grosvenor (1916) 21 CLR 469; BC1600051 22.21, 22.23, 24.23 Sign-O-Lite Plastics Ltd v Metropolitan Life Insurance Co (1990) 73 DLR (4th) 541 20.51, 22.53 Silven Properties Ltd v Royal Bank of Scotland plc [2004] 4 All ER 484; [2003] EWCA Civ 1409 1.45 Silver Valley Mines, Re (1882) 21 Ch D 381 1.47 Simmons v Liberal Opinion Ltd [1911] 1 KB 966 23.93 Simon v Vincent J O'Gorman Pty Ltd (1979) 41 FLR 95 23.72, 23.75 Simons v Patchett (1857) 7 E & B 568; 119 ER 1357 23.91 Simpson v Sawtell (1953) 53 SR (NSW) 251 15.20, 15.26, 15.28 Sims & Co v Midland Railway Company [1913] 1 KB 103 6.4, 6.5 Sims v Brittain (1832) 4 B & Ad 375; 110 ER 496 9.10 — v Craig Bell & Bond [1991] 3 NZLR 535 12.39 — v Landray [1894] 2 Ch 318 8.19, 8.22 Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd [2012] Ch 453; [2011] EWCA Civ 347 12.16, 12.17 Sinclair v Hudson (1995) 9 BPR 16,259; BC9505359 5.6, 5.19, 5.32, 23.91 — v Ridout [1955] 4 DLR 468 12.59 Sinfra Aktiengesellschaft v Sinfra Ltd [1939] 2 All ER 675 4.19, 26.1 Singer v Trustee of the Property of Munro [1981] 3 All ER 215 8.30 Singh v Smithenberger (1923) 23 SR (NSW) 207 5.30 Siu Yin Kwan v Eastern Insurance Co Ltd [1994] 2 AC 199 19.28, 19.33, 19.37, 19.42 Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd [2009] 4 SLR(R) 788; [2009] SGHC 197 20.34 Skaventzos v Bevan McLean & Associates Pty Ltd (1994) 62 SASR 344; BC9405615 16.23, 16.25 Skelton v Wood (1894) 71 LT 616 18.14 Skinner v Stocks (1821) 4 B & Ald 437; 106 ER 997 4.31 — v Trustee of the Property of Reed [1967] Ch 1194 2.16, 18.23, 18.45 Skipper v Mathot [1926] St R Qd 12 10.3, 10.5, 16.5

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— v Syrmis [1925] St R Qd 129 17.15 Skylight Maritime SA v Ascot Underwriting Ltd [2005] PNLR 25; [2005] EWHC 15 (Comm) 23.91 Slater v Strawberry John Pty Ltd [2002] WASC 204; BC200204897 4.14, 4.15 Smally v Smally (1700) 1 Eq Cas Abr 6; 21 ER 83 3.5 Smart v Sandars (1846) 3 CB 380; 136 ER 152 1.23, 7.18 — v — (1848) 5 CB 895; 136 ER 1132 25.23, 25.24, 25.26 Smith, Stone and Knight Ltd v Lord Mayor, Aldermen and Citizens of the City of Birmingham [1939] 4 All ER 116  2.26, 2.27 Smith v Anderson (1880) 15 Ch D 247 1.48 — v Glegg [2005] 1 Qd R 561; [2004] QSC 443; BC200408515 12.62 — v Hamilton [1951] Ch 175 2.16 — v MacGowan [1938] 3 All ER 447 8.24 — v M'Guire (1858) 3 H & N 554; 157 ER 589 20.29, 21.13 — v Peter & Diana Hubbard Pty Ltd [2006] NSWCA 109; BC200603165 8.4, 8.7, 20.43 — v Sorby (1875) 3 QBD 552n 12.12 — v Stallard and French (1919) 21 WALR 19 1.2, 15.2 — v Webster (1876) 3 Ch D 49 8.27 — v Wheatcroft (1878) 9 Ch D 223 19.43 — v Woodcock [1950] VLR 114 23.46, 23.47, 23.48 Smout v Ilbery (1842) 10 M & W 1; 152 ER 357 25.44 Smythe v Bayleys Real Estate Ltd [1994] ANZ ConvR 422 24.34, 24.37 Snell, Re (1877) 6 Ch D 105 18.34 Snowdon v Davis (1808) 1 Taunt 359; 127 ER 872 23.51 Soames v Spencer (1822) 1 Dow & Ry 32 5.26 Soanes v London and South-Western Railway Co (1919) 88 LJKB 524 20.16 Soblusky v Egan (1960) 103 CLR 215; BC6000300 22.40 Société Coloniale Anversoise v London and Brazilian Bank Ltd [1911] 2 KB 1024 21.1

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Société Générale de Paris v Tramways Union Co Ltd (1884) 14 QBD 424 22.61 Software Integrators Pty Ltd v Roadrunner Couriers Pty Ltd (1997) 69 SASR 288; BC9704123 24.33 Solley v Wood (1852) 16 Beav 370; 51 ER 821 9.3 Solloway v McLaughlin [1938] AC 247 18.15 Solly v Rathbone (1814) 2 M & S 298; 105 ER 392 9.10, 18.46 Sonnenschein v Douglas Elliman-Gibbons & Ives 274 AD 2d 244 (NY 2000) 12.52 — v — 753 NE 2d 857 (NY 2001) 12.52 Sorrell v Finch [1977] AC 728 1.28, 8.7, 23.49 Soulos v Korkontzilas (1997) 146 DLR (4th) 214 12.23, 12.27 South Australian Farmers' Co-operative Union Ltd v Lamshed [1941] SASR 122 22.15 South Bucks District Council v Flanagan [2002] 1 WLR 2601; [2002] EWCA Civ 690 8.25, 20.57 South Johnstone Mill Ltd v Dennis (2007) 163 FCR 343; [2007] FCA 1448; BC200707897 1.44, 1.46 South Melbourne Permanent Building and Investment Society and Deposit Institute v Field (1893) 19 VLR 213  19.14 South Sydney District Rugby League Football Club Ltd v News Ltd (2000) 177 ALR 611; [2000] FCA 1541; BC200006604 1.5, 1.6, 2.27, 4.13 Southbourne Investments Ltd v Greenmount Manufacturing Ltd [2008] 1 NZLR 30; [2007] NZSC 62 8.10 Southern Law Society v Westbrook (1910) 10 CLR 609; BC1000042 11.9 Southwell v Bowditch (1876) 1 CPD 374 23.14, 23.43 Sovereign Motor Inns Pty Ltd v Bevillesta Pty Ltd [2000] NSWSC 521; BC200003144 20.61 Spackman v Evans (1868) LR 3 HL 171 5.15 Spangaro v Corporate Investment Australia Funds Management Ltd (2003) 47 ACSR 285; [2003] FCA 1025; BC200305634 24.5 Speight, Re (1883) 22 Ch D 727 3.31 Speight v Gaunt (1883) 9 App Cas 1 3.31 Spence v Inland Revenue Commissioners (1941) 24 TC 311 5.40 Spina v Conran Associates Pty Ltd (2008) 13 BPR 25,435; [2008] NSWSC 326; BC200802476 10.10 Spina v Permanent Custodians Ltd (2008) 13 BPR 25,463; [2008] NSWSC 561; BC200805086 10.10

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— v — (2009) 14 BPR 26,923; [2009] NSWCA 206; BC200906292 10.10 Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501; [2001] VSCA 248; BC200108170 12.48, 25.37 Spiro v Lintern [1973] 1 WLR 1002 20.25 Spreag v Paeson Pty Ltd (1990) 94 ALR 679 2.27 Springer v Great Western Railway Company [1921] 1 KB 257 6.4, 6.10 Sprod v Public Relations Oriented Security Pty Ltd (2007) Aust Torts Reports ¶81-921; [2007] NSWCA 319; BC200709594 22.15 St Louis Breweries Ltd v Apthorpe (1898) 79 LT 551 2.27 St Margaret, Rochester Burial Board v Thompson (1871) LR 6 CP 445 9.1 Stadium Finance Ltd v Robbins [1962] 2 QB 664 21.29 Stafford v Conti Commodity Services Ltd [1981] 1 All ER 691 11.23, 11.25 Staffs Motor Guarantee Ltd v British Wagon Company Ltd [1934] 2 KB 305 21.26 Stahl v Miller (1918) 40 DLR 388 10.13 Standard Chartered Bank Ltd v Walker [1982] 3 All ER 938 1.44 Standard Chartered Bank v Pakistan National Shipping Corpn (No 2) [2000] 1 Lloyd's Rep 218 24.10 — v Pakistan National Shipping Corporation (Nos 2 and 4) [2003] 1 AC 959; [2002] UKHL 43 24.10 Standard Life Assurance Ltd v Oak Dedicated Ltd [2008] 2 All ER (Comm) 916; [2008] EWHC 222 (Comm) 11.41 Starkey v Bank of England [1903] AC 114 23.80, 23.88 Starks v RSM Security Pty Ltd (2004) Aust Torts Rep ¶81-763; [2004] NSWCA 351; BC200406355 22.15 State Bank of New South Wales Ltd v Burke (1997) 8 BPR 15,511; BC9701007 22.44 — v Chia (2000) 50 NSWLR 587; [2000] NSWSC 552; BC200005381 1.44, 1.46 State Bank of Victoria v Parry (1990) 2 ACSR 15; BC9001332 2.26, 2.27, 8.34, 8.43, 20.3 State of New South Wales v Loh Min Choo [2012] NSWCA 275; BC201210809 13.22 Stateliner Pty Ltd v Legal & General Assurance Society Ltd (1982) 29 SASR 16 22.50 Steele-Smith v Liberty Financial Pty Ltd [2005] NSWSC 398; BC200502553 1.31 Stefanelli v Emanuelle (1995, unreported); BC9504176 8.28 Steiglitz v Egginton (1815) Holt NP 141; 171 ER 193 4.22

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Steinecke (bht Gardos) v Wayne [2011] NSWSC 428; BC201103356 23.5 Stephens Travel Service International Pty Ltd (receivers and managers appointed) v Qantas Airways Ltd (1988) 13 NSWLR 331; BC8801851 1.50 Stephens v Badcock (1832) 3 B & Ad 354; 110 ER 133 9.10, 13.9 — v Elwall (1815) 4 M & S 259; 105 ER 830 5.38 Stevens v Biller (1883) 25 Ch D 31 1.23 — v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; BC8601402 22.4 — v Hill (1805) 5 Esp 247; 170 ER 800 23.54 Stevenson v Mortimer (1778) 2 Cowp 805; 98 ER 1372 23.9 Stewart Upton Pty Ltd v Pindar (1990) NSW ConvR ¶55-529 8.27 Stewart v Goldrange Pty Ltd [2003] WASCA 131; BC200303175 24.33 — v Hooker (1988) 2 NZBLC 103,446 10.3 Stiassny v North Shore City Council [2008] 1 NZLR 825 1.4, 1.6, 2.12 — v — [2009] 1 NZLR 342; [2008] NZCA 522 1.4, 1.6, 2.12, 13.7 Stock v Reliance Insurance Co, 238 NE 2d 420 (1968) 5.45 Stockton v Mason [1978] 2 Lloyd's Rep 430 8.45 Stone & Rolls Ltd (in liq) v Moore Stephens (a firm) [2009] 1 AC 1391; [2009] UKHL 39 22.58 Stone v Reliance Mutual Insurance Society Ltd [1972] 1 Lloyd's Rep 469 22.26, 22.27, 22.28 Storaker v Southouse & Long Ltd (1920) 20 SR (NSW) 190 23.21, 23.22 Story v Advance Bank Australia Limited (1993) 31 NSWLR 722; BC9304101 20.74 Stott Land Development Corporation Ltd v Dean [1967] WAR 86 23.62 Strangas v Young (1975) 1 BPR 9123 8.27 Strata Plan No 53441 v Walter Construction Group Ltd (2004) 62 NSWLR 169; [2004] NSWCA 429; BC200408103  1.7 Stratton v Vachon & Wilson (1911) 44 SCR 395 16.23 Striplin v United States, 100 Fed Cl 493 1.7 Stubbs v Slater [1910] 1 Ch 632 15.77 Stump v Indiana Equipment Co, 601 NE 2d 398 22.49

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Suart v Haigh (1893) 9 TLR 488 23.83 Sullivan v Darkin [1986] 1 NZLR 214 1.44 Summergreene v Parker (1950) 80 CLR 304; BC5000140 23.58, 23.61, 23.62 Summers v Commonwealth (1918) 25 CLR 144 8.15 — v — (1919) 26 CLR 180; BC1900038 8.15 Sunburst Properties Pty Ltd (in liq) v Agwater Pty Ltd [2005] SASC 335; BC200506526 20.74 Suncorp Insurance and Finance v Milano Assicurazioni SpA [1993] 2 Lloyd's Rep 225 5.10, 5.31, 5.37, 5.53 Sunray Irrigation Services Pty Ltd v Hortulan Pty Ltd (in liq) [1993] 2 VR 40 23.79 Superyacht Technologies Pty Ltd v Mackeddie Marine Pty Ltd [2012] QSC 401; BC201210228 16.9 Surrey Breakdown Ltd v Knight [1999] RTR 84 6.9 Sutton & Co v Grey [1894] 1 QB 285 1.14 Sutton v Forst (1925) 55 OLR 281 10.9 SVO Limousines Pty Ltd, Re (receivers and managers appointed) (1990) 2 ACSR 367 22.70 Swale v Ipswich Tannery (1906) 14 Com Cas 88 10.13 Swan v North British Australasian Co (1863) 2 H & C 175; 159 ER 73 21.19 Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; [2006] HCA 19; BC200603256 22.5, 22.6, 22.15, 22.17, 22.18 — v Howard (2007) 13 BPR 24,381; [2007] NSWSC 852; BC200706435 7.7, 7.33, 8.7 Sweet v Pym (1800) 1 East 4; 102 ER 2 18.37 Sweeting v Pearce (1859) 7 CBNS 449 8.10 SWF Hoists & Industrial Equipment Pty Ltd v State Government Insurance Commission (1990) 6 ANZ Ins Cas ¶61002; BC9003514 11.27 Swift v Jewsbury (1874) LR 9 QB 901 3.21 Swindle v Knibb (1929) 29 SR (NSW) 325 22.23 Swire v Francis (1877) 3 App Cas 106 9.10 Swiss Air Transport Co Ltd v Palmer [1976] 2 Lloyd's Rep 604 20.29 Sydney South West Area Health Service v MD (2009) 260 ALR 702; [2009] NSWCA 343; BC200909477 11.26 Sydney Water Corp v Makucha [2010] NSWSC 114; BC201000785 19.25, 20.45

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Sykes v Colson [1988] ANZ ConvR 250 10.3, 20.28 Symons v Callil [1923] VLR 49 16.14

End of Document

T Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Table of Cases > Table of Cases

T Please click on the link below to download the entire chapter. T D Keegan Ltd v Palmer [1961] 2 Lloyd's Rep 449 23.4 T P Jordeson & Co & Kahn v London Hardwood Co Ltd (1913) 110 LT 666 23.5 Tag Pacific Ltd v Bos Stockbroking (1989) 15 ACLR 337; BC8902221 8.14 Talbot v McDonald (1925) 25 SR (NSW) 267 7.28, 7.29 Tambakis v Ferluga (2010) 107 SASR 246; [2010] SASC 122; BC201002783 2.16 Tanner v Christian (1855) 4 E & B 125; 119 ER 217 23.14 Tanning Research Laboratories Inc v O'Brien (1987) 11 ACLR 778; BC8701387 1.47 — v — (1990) 169 CLR 332; BC9002954 1.47 Tapley v Giles (1986) 40 SASR 474 16.6, 16.14, 16.20 Tappenden v Artus [1964] 2 QB 185 2.15 Tasmanian Finance & Agency Co Ltd v Bingham [1945] Tas SR 68 10.9 Tate & Sons v Hyslop (1885) 15 QBD 368 22.55 Tate v Freecorns Pty Ltd [1972] WAR 204 2.26 — v Munro (1891) 12 LR (NSW) L 71 1.56, 15.12 — v Williamson (1866) LR 2 Ch App 55 10.6 Taylor, Stileman & Underwood, Re [1891] 1 Ch590 18.26, 18.38 Taylor v Cordis Corp, 634 F Supp 1242 18.3 — v Harcourts Real Estate Ltd [1990] ANZ ConvR 579 12.41, 12.47, 12.50 — v Kymer (1832) 3 B & Ad 320; 110 ER 120 18.46 — v Marmaras [1954] VLR 476 18.33 — v Robinson (1818) 8 Taunt 648; 129 ER 536 18.21 — v Smith (1926) 38 CLR 48; BC2690110 5.19, 5.21, 5.31

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— v Smith [1926] VLR 100 1.18, 4.15 — v Walker [1958] 1 Lloyd's Rep 490 3.2, 19.25 — v Yorkshire Insurance Company Ltd [1913] 2 IR 1 22.49, 22.63 Technology Leasing Ltd v Lennmar Pty Ltd [2012] FCA 709; BC201204911 1.31, 20.9 Teheran-Europe Co Ltd v S T Belton (Tractors) Ltd [1968] 2 QB 545 19.33, 23.40 Temple Legal Protection Ltd v QBE Insurance (Europe) Ltd [2009] 1 CLC 553; [2009] EWCA Civ 453 25.3, 25.26 Tenji v Henneberry & Associates Pty Ltd [2000] ANZ ConvR 205; [1999] FCA 1029; BC9904283 11.27 Terry Marter Real Estate Ltd v Lovette Investments Ltd (1981) 123 DLR (3d) 387 15.39, 15.41 Terry Pfeiffer Real Estate Pty Ltd v Connors [2000] NSWSC 452; BC200002846 17.5 Tesco Supermarkets Ltd v Nattrass [1972] AC 153 22.48, 22.65, 22.66 Thane v Hollings (1952) 69 WN (NSW) 160 15.26 Thankakharn Kasikorn Thai Chamkat (Mahachorn) v Akai Holdings [2011] 1 HKC 357; [2010] HKCFA 64 20.32, 20.34, 20.38, 20.43, 20.45 Theobold & Son v West Heidelberg Motors Pty Ltd [1970] VR 552 17.16, 17.17, 17.20 Thesenga Land Co v Cirrus Warehouse Inc, 2003 Minn App LEXIS 1433 20.46 Thomas Brown and Sons Ltd v Fazal Deen (1962) 108 CLR 391; BC6200450 13.10 Thomas Gabriel & Sons v Churchill & Sim [1914] 3 KB 1272 1.15 Thompson v Cartwright (1863) 33 Beav 178; 55 ER 335 22.63 — v Henderson & Partners Pty Ltd (1990) 58 SASR 548 22.21, 22.34, 24.25 — v Hickman [1907] 1 Ch 550 5.29 — v Howley [1977] 1 NZLR 16 8.31, 20.57, 20.58 — v Meade (1891) 7 TLR 698 11.51 — v Palmer (1933) 49 CLR 507 20.11, 20.53 — v Wright (1884) 13 QBD 632 18.7 Thomson v Clydesdale Bank [1893] AC 282 21.7 — v Davenport (1829) 9 B & C 78; 109 ER 30 19.11 — v Mclnnes (1911) 12 CLR 562 3.21

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Thornes v Eyre (1915) 34 NZLR 651 17.5 Thornley v Tilley (1925) 36 CLR 1; BC2500028 10.15, 12.5, 19.17 Tibmor Pty Ltd v Nashlyn Pty Ltd [1989] 1 Qd R 610 18.21, 18.24, 18.40 Tiedemann and Ledermann Freres, Re [1899] 2 QB 66 5.17 Timms v Carofano (1989) 53 SASR 572 16.19, 16.25 Tina Motors Pty Ltd v Australia and New Zealand Banking Group Ltd [1977] VR 205 5.15 Tingley v Müller [1917] 2 Ch 144 26.8 Titan Group Pty Ltd v Steriline Manufacturing Pty Ltd (1990) 19 IPR 353; BC9003677 12.59 Tobin v Broadbent (1947) 75 CLR 378; BC4700530 5.33, 7.23, 7.31, 7.33, 8.15, 10.14, 19.4, 20.13, 21.15, 21.17 — v Melrose [1951] SASR 139 5.19, 5.27, 5.31, 18.37, 18.38, 22.50, 22.55 Todd, Re (No 2) (1910) 10 SR (NSW) 490 13.6 Tolhurst v Associated Portland Cement Manufacturers (1900) Ltd [1903] AC 414 3.17 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52; BC200407463 4.12, 5.19, 7.5 Tombill Gold Mines Ltd v Hamilton [1954] OR 871 11.10, 12.5 Tonto Home Loans Australia Pty Ltd v Tavares (2011) 15 BPR 29,699; [2011] NSWCA 389; BC201110342 1.4, 1.5, 1.6, 1.31, 22.58 Tosich v Tasman Investment Management Ltd (2008) 250 ALR 274; [2008] FCA 377; BC200801857 11.43 Toulmin v Millar (1887) 58 LT 96 15.10, 15.13, 15.14 Towle v White (1873) 29 LT 78 1.5, 1.12, 1.13, 2.3, 4.4 Toycorp Ltd (receivers and managers appointed) v Milton Bradley Australia Pty Ltd [1992] 2 VR 572 1.16 Trade Practices Commission v Sun Alliance Australia Ltd (1994) ATPR ¶41-286; BC9305175 22.66 Traders' Finance Corporation Ltd v General Motors Acceptance Corporation [1932] NZLR 1 21.27 Trans Pacific Business Services Pty Ltd v Woodwin Pty Ltd [2002] VSC 442; BC200206288 19.11 Transamerica Leasing Inc v La Republica de Venezuela, 200 F 3d 843 (DC Cir 2000) 2.27 Transplanters (Holding Company) Ltd, Re [1958] 2 All ER 711 22.67 Travel Air International Pty Ltd v Bastion [2012] NSWSC 28; BC201203546 20.57 Travelers Indemnity Co v National Indemnity Co, 292 F 2d 214 1.36

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Trego v Hunt [1896] AC 7 3.29 Treloar v Ivory (1991) 4 WAR 318 22.20, 22.37 Trevor Ivory Ltd v Anderson [1992] 2 NZLR 517 24.10 Trevor v Hutchins (1897) 76 LT 183 10.17 Tribe v Taylor (1876) 1 CPD 505 16.5 Tricontinental Corp Ltd v HDFI Ltd (1990) 21 NSWLR 689 15.77 Trident General Insurance Co Pty Ltd v McNiece Bros Pty Ltd (1987) 8 NSWLR 270 5.10, 5.14, 5.23, 5.29, 5.45, 19.46 — v — (1988) 165 CLR 107; BC8802625 5.10, 5.14, 5.23, 5.29, 19.46 Trimper v Frahn [1925] SASR 347 22.69 Tronson v Dent (1853) 8 Moo PC 419 6.10 Trotter v Avonmore Holdings Ltd (2005) 8 NZBLC 101,646; [2005] NZCA 192 23.28 — v McSpadden [1986] VR 329 15.36 Truefilm Pty Ltd v J R Investment Holdings Pty Ltd (2004) 12 BPR 22,769; [2004] NSWSC 372; BC200402412  15.57 Trueman v Loder (1840) 11 Ad & El 589; 113 ER 539 20.36, 25.38 Tsangaris v Gaymark Investments Pty Ltd (1986) 82 FLR 269 7.3, 8.31, 20.8, 20.11, 20.50, 20.57, 20.58 Tuck v Brown (1919) 19 SR (NSW) 34 7.28, 7.30 Tudor Marine Ltd v Tradax Export SA (The ‘Virgo’) [1976] 2 Lloyd's Rep 135 23.10, 23.22, 23.43 Tummon Investments Pty Ltd (in liq), Re (1993) 11 ACSR 637; BC9303046 8.39, 8.43, 20.66, 20.84 Turnbull v Wightman (1945) 45 SR (NSW) 368 15.20, 15.26, 15.33, 15.44, 15.52, 15.78 Turner v Goldsmith [1891] 1 QB 544 25.13, 25.16, 25.22 — v Laurentide Financial Realty Corporation (Western) Ltd (1979) 97 DLR (3d) 429 12.50 — v Webb (1941) 42 SR (NSW) 68 5.19, 5.27, 5.53 Turpin v Bilton (1843) 5 Man & G 455; 134 ER 641 11.1 Tynan v A'Beckett [1923] VLR 412 15.38, 15.53

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U Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Table of Cases > Table of Cases

U Please click on the link below to download the entire chapter. UBAF Ltd v European American Banking Corporation [1984] QB 713 3.25 Union Bank of Australia Ltd v Rudder (1911) 13 CLR 152; BC1190106 5.9, 5.34, 5.38, 5.55 Union Bank of Australia v McClintock [1922] 1 AC 240 5.53 — v Murray-Ansley [1898] AC 693 21.7 Union Fidelity Trustee Co of Australia Ltd v Gibson [1971] VR 573 12.62 United Africa Co Ltd v Saka Owoade [1955] AC 130 22.14 United Australia Ltd v Barclays Bank Ltd [1941] AC 1 12.18, 19.25, 24.14 United Dominions Corporation Ltd v Brian Pty Ltd (1985) 157 CLR 1 1.48 United Dominions Trust (Commercial) Ltd v Eagle Aircraft Services Ltd [1968] 1 All ER 104 15.77 United Kingdom Mutual Steamship Assurance Association Ltd v Nevill (1887) 19 QBD 110 19.35 United States v Fulcher, 188 F Supp 2d 627 5.2, 8.3, 20.15 — v Schwab, 88 F Supp 2d 1275 9.16 Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603; BC9801853 11.55 Universal Guarantee Pty Ltd v Metters Ltd [1966] WAR 74 21.22 Universal Steam Navigation Co Ltd v James McKelvie & Co [1923] AC 492 23.11, 23.14, 23.18, 23.39 University of Nottingham v Fishel [2000] ICR 1462 2.19 Upjay Pty Ltd v MJK Pty Ltd (2001) 79 SASR 32; [2001] SASC 62; BC200100962 1.27, 10.18, 17.14 Upjohn v Illingworth (1928) 29 SR (NSW) 4 7.1, 15.10, 16.5, 16.6 Urquhart v Lanham (2002) 11 BPR 20,765; [2002] NSWSC 119; BC200200633 23.5 Uxbridge Permanent Benefit Building Society v Pickard [1939] 2 KB 248 22.15

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V Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Table of Cases > Table of Cases

V Please click on the link below to download the entire chapter. Valamios v Demarco (2005) 63 NSWLR 191; [2005] NSWCA 98; BC200502402 23.20 Van Praagh v Everidge [1902] 2 Ch 266 8.20 — v — [1903] 1 Ch 434 8.19 Van Rassel v Kroon (1953) 87 CLR 298; BC5300110 13.6 Vandepitte v Preferred Accident Insurance Corporation of New York [1933] AC 70 19.7, 23.35 Vane v Vane (1873) 8 Ch App 383 22.49 Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1; [2012] UKSC 56 22.15 Varneba Pty Ltd v Simpson (2007) 4 DCLR(NSW) 182; [2007] NSWDC 48; BC200740243 17.24 Vaughan v S Foster & Son Ltd (1917) 17 SR (NSW) 281 15.62, 15.63, 15.78 Veljkovic v Vrybergen [1985] VR 419 11.5, 11.6, 19.17, 19.18 Venuti v Toop Real Estate Group Pty Ltd [2004] SASC 23; BC200400199 11.1 — v — [2004] SASC 169; BC200403418 8.20, 8.21 Verderame v Commercial Union Assurance Co plc [1992] BCLC 793 24.20 Verschures Creameries Ltd v Hull and Netherlands Steamship Company Ltd [1921] 2 KB 608 5.29, 5.36 Vettese v Kemp (2000) 77 SASR 53; [2000] SASC 154; BC200003059 8.5, 22.21, 24.39 Vickery v JJP Custodians Pty Ltd (2002) 11 BPR 20,333; [2002] NSWSC 782; BC200205296 4.30, 26.4, 26.14 Vickery v Woods (1952) 85 CLR 336; BC5200120 23.58 Victorian Professional Group Management Pty Ltd v Proprietors ‘Surfers Aquarius’ Building Units Plan No 3881 [1991] 1 Qd R 487 5.19 Vincent v Johnstone Shire Council [1997] 1 Qd R 554; BC9507160 3.19, 3.20, 3.25 Viney v Chaplin (1858) 2 De G & J 468 8.7 Visbord v Federal Commissioner of Taxation (1943) 68 CLR 354; BC4300037 1.45

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Vitol SA v Phibo Energy AG (The ‘Mathraki’) [1990] 2 Lloyd's Rep 84 8.17 V/O Rasnoimport v Guthrie & Co Ltd [1966] 1 Lloyd's Rep 1 19.6, 20.47, 23.84, 23.86, 23.89, 23.90, 23.91 Voge v Kerr (1919) 19 SR (NSW) 34 7.27 Volkers v Midland Doherty Ltd (1985) 17 DLR (4th) 343 11.46 Voss v Suncorp-Metway Ltd (No 2) [2004] 1 Qd R 214; [2003] QCA 252; BC200303228 21.7 VSH Ltd v VKS Transport Ltd and Stevens [1964] 1 Lloyd's Rep 460 23.28 Vuletic v Contributory Mortgage Nominees Ltd (2006) 7 NZCPR 552; [2006] NZCA 191 23.28

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W Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Table of Cases > Table of Cases

W Please click on the link below to download the entire chapter. W A Coombs Ltd v Walter Brown [1940] SASR 211 9.15, 9.19 W K Witt (WA) Pty Ltd v Metters Ltd [1967] WAR 15 2.2, 25.8, 25.10 W Noall & Son v Wan [1970] VR 683 8.14, 18.12, 18.28 W T Lamb & Sons v Goring Brick Company Ltd [1932] 1 KB 710 2.2 Wadham v Giles (1879) 13 SALR 65 18.14 Waimond Pty Ltd v Byrne (1989) 18 NSWLR 642 10.3, 10.21, 10.22 Wake v Harrop (1862) 1 H & C 202; 158 ER 859 19.30, 23.42 Wakefield v Duckworth & Co [1915] 1 KB 218 23.14, 23.19 Wakim v HIH Casualty & General Insurance Ltd (2001) 111 FCR 58; [2001] FCA 103; BC200100352 11.32 Walden Properties Ltd v Beaver Properties Pty Ltd [1973] 2 NSWLR 815 4.15, 10.9, 10.12, 12.34 Walder v Cutts [1909] VLR 261 8.11 Walker, Fraser and Steele v Fraser's Trustees [1910] SC 222 16.5 Walker, Re [2003] WASC 252; BC200307867 3.26 Walker v Barker (1900) 16 TLR 393 8.10 — v Corboy (1990) 19 NSWLR 382 2.11, 2.12, 13.6 — v Great Western Railway Co (1867) LR 2 Ex 228 6.10 — v Rostron (1842) 9 M & W 411; 152 ER 174 23.54 — v Wimborne (1976) 137 CLR 1 2.27 Wallace v Evershed [1899] 1 Ch 891 18.33 — v Woodgate (1824) Ry & M 193; 171 ER 990 18.40 Walsh v Whitcomb (1797) 2 Esp 565; 170 ER 456 25.23, 26.1 Walshe v Provan (1853) 8 Ex 843; 155 ER 1595 18.34

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Walter v James (1871) LR 6 Ex 124 5.47, 5.50 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 BC8802656 19.23, 20.11, 20.12, 20.25 Wandel & Goltermann GBMH & Co v Wandel Global Services Pty Ltd [2002] FCA 1609; BC200207935 20.59 Wanless v Brisbane City Council (1987) 11 QLCR 252 2.27 Ward v Ward (No 2) [2011] NSWSC 1292; BC201109231 10.10 Warehousing & Forwarding Company of East Africa Ltd v Jafferali & Sons Ltd [1964] AC 1 5.49 Warlow v Harrison (1859) 1 El & El 309; 120 ER 925 8.20, 23.66, 25.2, 25.31 Warman International Ltd v Dwyer (1995) 182 CLR 544; BC9506414 10.7, 10.13, 12.3 Warren, Ex parte (1885) 15 QBD 48 22.50 Warren H Payne (Distributors) Pty Ltd v R S & E (Surbiton) Ltd (1956) 73 WN (NSW) 87 18.24, 18.44 Warren v Henry Sutton & Co [1976] 2 Lloyd's Rep 276 11.41, 11.42 Watersheds Ltd v Simms [2009] EWHC 713 (QB) 16.9 Watkins v Vince (1818) 2 Stark 368; 171 ER 675 3.5 Watson & Co, Re [1904] 2 KB 753 1.5, 2.5 Watson v Davies [1931] 1 Ch 455 5.15, 5.49 — v Dolmark Industries [1992] 3 NZLR 311 2.5 — v King (1815) 4 Camp 272; 171 ER 87 25.23, 25.44 — v Lyon (1855) 7 De GM & G 288; 44 ER 113 18.39 — v Powell (1921) 58 DLR 615 20.36, 25.38 — v Swann (1862) 11 CBNS 756 5.10 Watteau v Fenwick [1893] 1 QB 346 8.2, 20.51, 20.52 Watters v John Crisp Pty Ltd (1982) 64 FLR 299 15.48 — v — [1984] ANZ ConvR 437 15.48 Waugh v HB Clifford & Sons Ltd [1982] Ch 374 8.31, 20.57 — v Slavik (1976) 62 DLR (3d) 577 5.29 — v Waugh (1950) 50 SR (NSW) 210 3.5, 22.40 Way v Latilla [1937] 3 All ER 759 15.5

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Webb v Bloch (1928) 41 CLR 331; BC2890110 24.9 — v S A Worsted Mills Pty Ltd [1942] SASR 157 1.18, 15.5, 15.52, 15.53 — v Smith (1885) 30 Ch D 192 23.55 Weber v Land and Business Agents Board (1986) 40 SASR 312 11.21, 11.22, 11.27, 11.28, 12.40 Webster Ltd v Johnson (1992, unreported); BC9200087 7.3 Weeks v Goode (1859) 6 CBNS 367; 141 ER 499 18.37 Weiner v Harris [1910] 1 KB 285 2.2, 21.22, 21.24, 21.30 Weir v Bell (1878) 3 Ex D 238 24.43 Welch v Handcock (1907) 7 SR (NSW) 404 19.16 Wellington Steam Ferry Company (Ltd) (in liq) v Wellington Deposit, Mortgage and Building Association (Ltd) (1915) 34 NZLR 913 25.19 Wells v Birtchnell (1893) 19 VLR 473 8.7, 23.50 — v D'Amico [1961] VR 672 8.31 — v Smith [1914] 3 KB 722 22.56, 22.61 Welsbach Incandescent Gas Lighting Company v New Sunlight Incandescent Company [1900] 2 Ch 1 22.70 Welsh v Roe (1918) 87 LJKB 520 20.58 Wenczel v Commonwealth Bank of Australia [2006] VSC 324; BC200607068 22.44 Wentworth v de Montford (1988) 15 NSWLR 348 13.4 Western Australian Insurance Co Ltd v Dayton (1924) 35 CLR 355; BC2500041 1.35, 11.44 Westlake v White (1985) 3 ANZ Ins Cas ¶60-616; BC8400200 11.43 Westpac Banking Corporation v Bell Group Ltd (in liq) (No 3) (2012) 44 WAR 1; [2012] WASCA 157; BC201206001  1.39, 22.50 — v ITS Taxation Services Pty Ltd (2004) 183 FLR 273; [2004] NSWSC 50; BC200400354 18.32 — v Savin [1985] 2 NZLR 41 2.12, 13.7, 24.5 Wheeler and Wilson v Shakespear (1869) 39 LJ Ch 36 2.5 Whinfield v Lovell [1926] VLR 185 23.48, 23.50 White, Ex parte (1871) 24 LT 45 1.5, 1.12, 1.13, 2.2, 2.3, 4.4

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White v Baycorp Advantage Business Information Services Ltd (2006) 200 FLR 125; [2006] NSWSC 441; BC200603521 19.37 — v Illawarra Mutual Building Society Ltd [2002] NSWCA 164; BC200203988 8.30 — v Lucas (1887) 3 TLR 516 15.7 — v Moriarty, 19 Cal Rptr 2d 200 (Cal App 1993) 5.20 — v Tyndall (1888) 13 App Cas 263 4.33 — v Walker (1884) 1 TLR 603 16.14 Whitehead v Taylor (1839) 10 Ad & El 210; 113 ER 81 5.10 Whitfield v Brand (1847) 16 M & W 282 1.23 Whitlam v Australian Securities and Investments Commission (2003) 57 NSWLR 559; [2003] NSWCA 183; BC200303690 1.52 Whitley Partners Ltd, Re (1886) 32 Ch D 337 3.19, 3.20, 3.21 Whitley, Re (1886) 32 Ch D 337 3.20 Wickberg v Shatsky (1969) 4 DLR (3d) 540 23.63 Wilbraham v Colclough [1952] 1 All ER 979 22.50 Wilcox Manufacturing Group Inc v Marketing Services of Indiana Inc, 832 NE 2d 559 (Ind App 2005) 5.14 Wilden Pty Ltd v Green (2009) 38 WAR 429; [2009] WASCA 38; BC200900620 10.8 Wiley v Commonwealth Bank of Australia (1995) 18 ACSR 299; BC9502837 1.45, 1.46, 25.19 Wilkinson v Coverdale (1793) 1 Esp 75; 170 ER 284 11.52 — v Feldworth Financial Services Pty Ltd (1998) 29 ACSR 642 3.31, 10.25 — v Martin (1837) 8 C & P 1 16.5 — v Young (1972) 25 DLR (3d) 275 25.23 William Cory and Sons Ltd v Lambton and Hetton Collieries Ltd (1916) 115 LT 738 18.8 William Watson & Co, Re [1904] 2 KB 753 2.6 Williams & Co Pty Ltd v Bond [1965] VR 610 7.14, 15.33, 15.45, 15.46, 15.48, 15.52 Williams (decd), Re (1912) 14 WALR 20 8.24, 16.3 Williams v Bulat [1992] 2 Qd R 566 19.43, 19.44, 19.45 — v Commissioner for Main Roads (1940) 40 SR (NSW) 472 24.13

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— v Evans (1866) LR 1 QB 352 8.10 — v Lister & Co (1913) 109 LT 699 18.9, 18.13 — v Millington (1788) 1 H Bl 81; 126 ER 49 8.23, 18.23, 23.8 — v Natural Life Health Foods Ltd [1998] 2 All ER 577 24.10 — v North China Insurance Co (1876) 1 CPD 757 5.45 — v Pott (1871) LR 12 Eq 149 13.23 Williamson v Barbour (1877) 9 Ch D 529 22.61 — v Hine [1891] 1 Ch 390 10.1, 11.20, 12.7, 12.14, 15.5 Willis & Co v Baddeley [1892] 2 QB 324 23.7 Wilson & Meeson v Pickering [1946] KB 422 20.53 Wilson & Sons v Pike [1949] 1 KB 176 8.19, 8.23 Wilson v AVEC Audio-Visual Equipment Ltd [1974] 1 Lloyd's Rep 81 23.14 — v Brett (1843) 11 M & W 113; 152 ER 737 11.34 — v Creek and Black (1930) 33 WALR 26 20.31 — v Darling Island Stevedoring and Lighterage Company Ltd (1955) 95 CLR 43 2.21 — v Tumman (1843) 6 M & G 236 5.43 — v Tumman (1848) 12 LJ CP 306 5.38 Wilson's Laundry Pty Ltd v Patmoy [1961] NSWR 499 3.16, 3.19 Wiltshire v Sims (1808) 1 Camp 258; 170 ER 949 8.11 Windsor Refrigerator Co Ltd v Branch Nominees Ltd [1961] Ch 375 4.22 Winterton Constructions Pty Ltd v Hambros Australia Ltd (1992) 39 FCR 97; BC9203843 24.33 Wombat Nominees Pty Ltd v De Tullio (1990) 98 ALR 307; BC9003680 1.53 Wong v 407527 Ontario Ltd (2000) 179 DLR (4th) 38 11.11, 11.23 Wong Wee Wan v Kwan Kin Travel Services Ltd [1996] 1 WLR 38 1.50 Wood v Little (1921) 29 CLR 564 12.18, 12.34 — v St Jules (1976) 69 DLR (3d) 481 12.25 Woodhouse AC Israel Cocoa Ltd SA v Nigerian Produce Marketing Co [1971] 2 QB 23 19.17

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— v — [1972] AC 741 19.17 Woods v W M Car Services (Peterborough) Ltd [1981] ICR 666 18.3 Woolfe v Horne (1877) 2 QBD 355 23.8 Woolmington v Director of Public Prosecutions [1935] AC 462 14.15 Wossildo v Catt (1934) 52 CLR 301; BC3400009 18.21 Wragg v Lovett [1948] 2 All ER 968 7.14 Wray v Kemp (1884) 26 Ch D 169 9.8 Wrenshall v McCammon (1912) 5 DLR 608 15.14 Wride v Holberton [1963] SASR 336 7.25, 8.15 Wright v Carter [1903] 1 Ch 27 12.62 — v Dannah (1809) 2 Camp 203; 170 ER 1129 3.7, 8.22 — v Gasweld Pty Ltd (1991) 22 NSWLR 317 25.37 — v Madden [1992] 1 Qd R 343 8.19, 8.20, 8.21, 12.56, 23.83, 25.31 — v Pepin [1954] 2 All ER 52 4.28, 22.67 Wrightson NMA Ltd v Cooper [1995] DCR 789 16.20 Wyatt v Ball [1955] St R Qd 515 16.18 — v Crate [2013] PNLR 16; [2012] CSOH 197 5.37 Wyllie v Pollen (1863) 3 De GJ & S 596; 46 ER 767 22.54 Wypych v McDowell (1990) 11 RPR (2d) 89 1.54

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Y Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Table of Cases > Table of Cases

Y Please click on the link below to download the entire chapter. Yager v Fishman and Co [1944] 1 All ER 552 11.9 Yagerphone Ltd, Re [1935] 1 Ch 392 2.13 Yasuda Fire & Marine Insurance Co of Europe Ltd v Orion Marine Insurance Underwriting Agency Ltd [1995] 2 WLR 49; [1995] QB 174 4.14, 4.17, 13.2, 25.36 Yates Property Corporation Pty Ltd v Boland (1998) 85 FCR 84; BC9803621 11.32 Yates v Hoppe (1850) 9 CB 541; 137 ER 1003 25.23 Yona International Ltd v La Reunion Francaise SA d'Assurances [1996] 2 Lloyd's Rep 84 5.6, 5.31 Yonge v Toynbee [1910] 1 KB 215 23.87, 23.88, 23.90, 23.93, 25.42 Yorke v Lucas (1985) 158 CLR 661; BC8501069 24.30, 24.35 Youell v Bland Welch & Co Ltd (The ‘Superhulls Cover’ Case) (No 2) [1990] 2 Lloyd's Rep 431 11.46 Young v Schuler (1883) 11 QBD 651 23.28 Your Home Realty (NT) Pty Ltd v Cooke [1997] ANZ ConvR 267; BC9602836 16.8 Yu v Brownvalley Investments Pty Ltd [2010] NSWSC 253; BC201001947 21.3 Yuen Chow Hin v ERA Realty Network Pte Ltd [2009] 2 SLR(R) 786; [2009] SGHC 28 1.4, 12.28

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Z Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Table of Cases > Table of Cases

Z Please click on the link below to download the entire chapter. Zajc & Zajc v Dillon & Associates (a firm) and Purkiss (1986) 4 ANZ Ins Cas ¶60-753; BC8600157 11.50 Zen Foundation One Pty Ltd v Sippy Downs Group Pty Ltd [2009] QSC 334; BC200909788 2.12 Zeus Chemical Products Pty Ltd v Jaybee Design & Marketing Pty Ltd (1998) 41 IPR 491; BC9800923 13.3, 13.4 Zhang v VP302 SPV Pty Ltd (2009) 223 FLR 213; [2009] NSWSC 73; BC200900869 8.27 Zhen v Downer [2006] ACTSC 120; BC200610403 8.31 Zisopoulos v Barry Johnston (Insurance Brokers) Pty Ltd (1982) 2 ANZ Ins Cas ¶60-461 11.50 Zorom Enterprises Pty Ltd v Zabow (2007) 71 NSWLR 354; [2007] NSWCA 106; BC200703271 22.15 Zurich Insurance (Singapore) Pte Ltd v B-Gold Interior Design & Construction Pte Ltd [2008] 3 SLR(R) 1029; [2008] SGCA 27 1.34, 11.35

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Commonwealth Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Table of Statutes > Table of Statutes

Table of Statutes [Current to September 2013] Please click on the link below to download the entire chapter. References are to paragraphs

Commonwealth Australian Consumer Law s 18 … 10.27, 22.37, 22.38, 22.39, 24.29, 24.30 s 18(1) … 18.6 s 21 15.49, 15.52, 24.28 s 22 15.49 s 29 10.28 s 30 10.28, 24.29 s 51 19.8 s 52 19.8 s 53 19.8 s 54 19.8 s 55 19.8 s 56 19.8 s 57 19.8 s 58 19.8 s 59 19.8 s 60 10.29, 19.8 s 61 10.29, 19.8 s 62 19.8 s 64 10.24, 19.8 s 64A 10.24, 19.8 s 64A(3) 19.8 s 64A(4) 19.8 s 236 18.6, 22.38 s 236(1) 10.28, 24.34 Pt 3–2, Div 1 19.8 Pt 5–2 24.30

Page 2 of 8 Commonwealth Bankruptcy Act 1966 s 123(1) 25.21 Bills of Exchange Act 1909 s 29 5.15 s 30 21.13 s 31(1) 23.3, 23.20 s 31(2) 23.20 s 34(1) 21.10 s 61(1) 23.20 s 88D 24.16 s 88D(1) 21.11 s 88D(2) 21.11 s 88D(3) 21.11 Carriage of Goods by Sea Act 1991 Sch 1 Art 3 r 4 7.4 Cheques Act 1986 s 3(6) 5.15 s 32(1) 5.15 s 34 21.13 s 50 21.10 s 51 21.10 s 75(1) 23.20 s 75(2) 23.20 s 95 24.16 s 95(1) 21.11 s 95(2) 21.11 Companies Code s 68A 20.74 s 68A(3)(b) 20.84 s 68A(4) 20.74 s 68A(5) 20.74 s 81 23.64 Competition and Consumer Act 2010 24.34 s 44ZZRJ 22.65 s 44ZZRK 22.65 s 46 22.65 s 46A 22.65 s 75B 10.28

Page 3 of 8 Commonwealth s 75B(a) 24.34 s 75B(c) 24.34, 24.37 s 84(1) 22.66 Pt IV, Div 1A 22.65 Pt IVB 22.65 Pt VI 22.65 Sch 2 10.24, 10.28, 15.49, 18.6, 19.8, 22.37 Corporate Law Simplification Act 1998 23.64 Corporations Act 2001 4.33, 4.34, 10.11, 13.19 s 79 24.34 s 119 23.64 s 123 1.42, 20.83 s 124 3.4, 20.73 s 125 3.4 s 125(2) 20.73 s 126(1) 1.41, 20.73 s 127(1) 1.42, 20.83 s 127(2) 20.82 s 128(1)–128(3) 20.74 s 128(4) 20.74 s 129 20.74 s 129(1) 20.74, 20.75 s 129(2)(a) 20.74, 20.76 s 129(2)(b) 20.74, 20.84 s 129(3)(a) 20.74, 20.78 s 129(3)(b) 20.74, 20.78, 20.84 s 129(4) 20.74, 20.81 s 129(5) 20.74, 20.83 s 129(6) 20.74, 20.82 s 129(7) 20.74, 20.80 ss 131–133 23.64 s 131(1) 5.13, 23.64 s 131(2) 23.64 s 131(3) 5.13, 23.64 s 131(4) 23.64 s 133 23.65 s 197 23.29 s 198C(1) 8.35 s 198D 24.43

Page 4 of 8 Commonwealth s 198E(1) 8.33 s 198F 3.30 s 198F(1) 3.30 s 198F(3) 3.30 s 199A(2) 18.20 s 199A(3) 18.20 s 199C(2) 18.20 s 201M 20.77 s 201M(2) 20.77 s 290(2) 3.30 s 419 18.27 s 419A 18.27 s 420(2) 1.43 s 420A 1.44 s 477(2)(b) 3.4 s 477(2)(k) 3.4 s 483(1) 18.30 s 500(3) 18.30 s 506(4) 4.33 s 588G 23.29 s 729(1) 24.12 s 761A 1.37 s 763A 12.21 s 763A(1) 3.12 s 764A(1)(d)–(f) 3.14 s 766A(1)(a)–(c) 3.12 s 766B(1) 3.12 s 911A(1) 3.12 s 912A 10.27 s 913B 3.12, 3.14 s 916A(1) 22.42 s 916B(3) 9.2 s 916E 1.37 s 917B 22.42 s 917C(2) 22.42 s 917C(4) 22.42 s 917D 22.42 s 917E 22.42 s 917F(1) 22.42 s 917F(2) 22.42

Page 5 of 8 Commonwealth s 917F(5) 22.42 s 917F(6) 22.42 s 923A 10.27, 12.9 s 923B 3.12, 3.14 s 925A(1) 3.13 s 925A(3) 3.12 s 925A(4) 3.12 s 925B 3.13 s 925C 3.13 s 925E 3.13 s 925F 3.13, 17.4 s 925H 3.13 s 925H(1) 17.4 s 941A(1) 11.8 s 941B(1) 11.8 s 942B 11.8 s 942B(2)(i) 1.37 s 942C 11.8 s 946A(1) 11.8 s 947B 11.8 s 947B(2)(d) 10.11 s 947B(2)(e) 10.11 s 947C 11.8 s 962G 11.8 s 962H 11.8 s 963A 10.11 s 963E(1) 10.11 s 963G(1) 10.11 s 981A(1) 13.19 s 981A(2) 13.19 s 981A(3) 13.19 s 981B(1) 13.19 s 981E 13.19 s 981H(1) 13.19 ss 982A–982D 13.19 s 984A(1) 7.33 s 984B 7.33 s 985B 1.37, 8.17 s 985B(1) 19.10 s 985B(3) 19.15

Page 6 of 8 Commonwealth s 985B(4) 19.10, 19.15 s 985B(5) 19.10, 19.15 s 988A(1) 13.19 s 988E 13.19 s 989B 13.19 s 991A(1) 10.27 s 991A(2) 10.27 s 991B(1) 10.11 s 991B(2) 10.11 s 991B(3) 10.11 s 991E(1) 12.21 s 991E(4) 12.21 s 991E(5) 12.21 s 1012A 11.8 s 1013C 11.8 s 1013D 11.8 s 1041H 10.28 s 1041I 10.28 s 1308 20.77 s 1311(1) 3.12, 3.14, 7.33, 10.28, 12.21 s 1317G 18.20 s 1317H 18.20 s 1317HA 18.20 Ch 7 1.8, 11.40, 22.42 Pt 7.6 3.14 Corporations Amendment (Insolvency) Act 2007 4.34 Corporations Amendment (Future of Financial Advice) Act 2012 10.11, 11.8 Corporations Law 20.82, 20.83 s 128 20.74 s 129 20.74 s 164 20.74 s 164(4) 20.74 s 164(5) 20.74 s 183 23.64 Corporations Regulations 2001 reg 7.8.07 7.33 reg 7.8.17 10.11 Criminal Code 1995

Page 7 of 8 Commonwealth s 70.2 14.1 s 141.1 14.1 s 142.1 14.1 Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 14.1 Evidence Act 1995 s 87(1)(a) 22.73 s 87(1)(b) 22.73 s 87(2) 22.73 Family Law Act 1975 6.13 ss 72–77A 6.13 ss 90SE–90SJ 6.13 Income Tax Assessment Act 1936 s 264 3.21 Insurance (Agents and Brokers) Act 1984 s 14(1) 19.10 s 14(2) 19.10 s 14(3) 19.10 s 14(4) 19.10 s 14(5) 19.10 s 16 1.37 Insurance Contracts Act 1984 s 21A 11.40 s 22 11.40 s 71 11.40 Migration Act 1958 s 276 17.3, 17.25 s 277 17.3 s 281(1) 17.3 s 281(3) 17.3 s 281(4) 17.3 s 282(1) 17.3 s 282(3) 17.3 s 282(4) 17.3 s 313(1) 17.25 s 313(2) 17.25 s 313(3) 17.25 s 313(4) 17.25

Page 8 of 8 Commonwealth Pt 3 Div 3 3.15 National Consumer Credit Protection Act 2009 s 6 3.11 s 29(1) 3.11 s 32(1) 17.4 s 121 17.29 Ch 2 13.20 Pt 2-2 3.11 Pt 2-5 13.20 Personal Property Securities Act 2009 21.23 s 46 20.1, 21.23 Pt 2.5 20.1, 21.23 Seat of Government (Administration) Act 1910 s 7 14.1 Secret Commissions Act 1905 14.1 Tax Agent Services Act 2009 s 50.5 3.15, 17.3 Trade Practices Act 1974 (replaced by Competition and Consumer Act 2010) s 51AB 15.49, 24.28 s 52 10.28, 22.37, 24.29 s 52(1) 18.6 s 53 10.28 s 53A 24.29 s 55A 24.29 s 68 10.24, 19.8 s 68A 10.24, 19.8 s 68A(2) 19.8 s 68A(3) 19.8 s 74 10.29 s 75B 24.34 s 75B(c) 24.37 s 82 18.6, 22.38, 24.34 Trading with the Enemy Act 1939 25.22

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Australian Capital Territory Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Table of Statutes > Table of Statutes

Australian Capital Territory Please click on the link below to download the entire chapter. Age of Majority Act 1974 s 5 3.2 Agents Act 2003 1.8 s 8 3.15 ss 8–12 13.21, 17.31 s 8(1) 1.27 s 8(2) 1.27 s 9 17.2 ss 9–12 3.15 s 10 17.2 s 11 17.2 s 12 17.2 ss 16–43 17.2 s 18 3.10, 3.15 s 21 3.15 s 23 3.10, 17.2, 17.3 ss 24–27 3.8 s 26 13.22 ss 40–43 3.10 ss 44–63 3.10 s 72(1) 17.31 s 72(3) 17.31 s 72(4) 17.31 s 72(5) 17.31 s 77 12.43 s 79 24.41 s 82 12.31 s 83(1) 11.14 s 84 12.11 s 85 12.11 s 86(1) 12.31

Page 2 of 6 Australian Capital Territory s 86(2) 12.31 s 87 12.31 s 87(2) 12.31 s 88 11.30 s 88(1) 24.42 s 88(3) 11.30, 24.42 s 89 11.30, 24.42 s 89B(1) 7.13 s 89B(1)(c) 7.15 s 89B(2) 7.25 s 89B(3) 7.25 s 89B(4) 7.15 s 91(1) 13.22 s 96(1) 17.27 s 99 17.6 s 100 18.20 s 100(1) 17.6 s 100(1)(b) 17.6, 17.29 s 100(2) 17.6 s 100(3) 17.6 s 101(1) 13.14 s 107 13.14 s 107(5) 13.15 ss 112–118 13.14 s 127 13.14, 13.20 s 130 13.20 Div 5.7 13.22 Pt 9 13.21 Pt 10 13.22 Agents Regulation 2003 reg 6 3.8 reg 14 11.14 reg 15 17.6 Schs 3–7 17.6 Sch 8 Pt 8.2 cl 8 10.27, 12.58 Civil Law (Wrongs) Act 2002 11.26 s 21(2) 18.17 s 174 24.39 Ch 7A 22.1

Page 3 of 6 Australian Capital Territory Civil Law (Sale of Residential Property) Act 2003 s 11 17.33 s 14 17.33 s 16 17.33 Civil Law (Property) Act 2006 s 201 4.25 s 204 3.7 s 204(1) 4.25 Civil Law (Sale of Residential Property) Regulation 2004 reg 16, Sch 1 23.67 Civil Unions Act 2012 26.2 Criminal Code 2002 s 300 14.22 s 353(1) 14.22 s 353(2) 14.22 s 354 14.22 s 355(1) 14.22 s 356(2) 14.22 s 357(2) 14.22 Discrimination Act 1991 s 12(2) 18.5 Evidence Act 2011 s 87(1)(a) 22.73 s 87(1)(b) 22.73 s 87(2) 22.73 Legal Profession Act 2006 1.8 s 222 13.16 s 223 13.16 s 229(1)(a) 18.24 s 232 13.16 s 241(1) 13.16 s 311 10.4 Married Persons' Property Act 1986 s 5 6.13 Mercantile Law Act 1962 s 6(a) 21.22

Page 4 of 6 Australian Capital Territory s 6(b) 21.22 s 11 21.22 Partnership Act 1963 1.8 s 6 1.48 s 9 1.48, 20.40, 20.62, 24.43 s 10 24.43 s 12 20.40, 20.62 s 14 22.1, 22.7 s 16 22.1 s 19 22.67 s 20 22.57 s 23 20.62 s 29(9) 3.28 s 38 25.19 Powers of Attorney Act 2006 1.30 s 6 1.30 s 8 1.30, 26.1 s 13(1) 3.16 s 13(3) 3.8 ss 19–22 4.29 ss 19–23 4.29 s 25 4.32 s 26 4.33 s 29(1) 1.30, 4.30, 26.4 s 29(2) 1.30, 26.4 s 32(1) 1.30, 26.1 s 32(2) 1.30 s 33(1) 9.1, 9.2 s 34 7.11, 10.10, 12.5 s 35 7.2 s 36 7.2 s 37 7.2 s 43(1) 26.3 s 43(2) 26.3 s 43(3) 26.3 s 47 13.18 s 48 13.18 s 48(1) 13.6 s 53(1) 26.2

Page 5 of 6 Australian Capital Territory s 53(2) 26.2 s 53(3) 26.2 s 54 25.23, 26.6 s 55 25.38, 26.3 s 56 26.2 s 57 26.2 s 58 26.2 s 59 26.2 s 60 26.2 s 61 26.2 s 62 26.2 s 63 26.2 s 64 26.2 s 65 4.32 s 66 4.32 s 70 26.9 s 72 26.9 s 73 26.14 s 75(2)(b) 13.12 s 75(2)(c) 26.5 s 77(2) 13.12 s 83 13.12 Registration of Deeds Act 1957 26.4 s 4(1) 4.30 Road Transport (Third-Party Insurance) Act 2008 s 20 4.18, 22.41 Pt 2–2 4.18, 22.41 Sale of Goods Act 1954 s 4 21.22, 21.24 s 7(1)(e) 21.22 s 7(a) 21.33 s 7(b) 21.22 s 7(c) 21.22 s 8 21.22 s 9 21.22 s 10(1)(a) 21.34 s 10(1)(b) 21.34 s 10(1)(c) 21.35 s 10(1)(d) 21.35

Page 6 of 6 Australian Capital Territory s 26(1) 20.1, 21.21 s 29(1) 20.1 s 29(2) 18.31, 20.1 Sale of Motor Vehicles Act 1977 s 31(1) 4.27, 17.23 s 31(5) 4.27, 17.23 s 33(1) 13.17 s 33(2) 13.17 Trustee Act 1925 s 51 3.31 s 52 3.31 s 53 3.31 s 58 26.12 s 64 3.31 Uncollected Goods Act 1996 6.7

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New South Wales Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Table of Statutes > Table of Statutes

New South Wales Please click on the link below to download the entire chapter. Aboriginal Land Rights Act 1983 14.3 Anti-Discrimination Act 1977 s 9(2) 18.5 s 26(2) 18.5 s 38D 18.5 s 41(2) 18.5 s 49E(2) 18.5 s 49YZC(2) 18.5 s 49ZI(2) 18.5 Civil Liability Act 2002 s 5O(1) 11.26 s 5O(2) 11.26 s 5O(3) 11.26 s 5O(4) 11.26 Pt 4 22.2 Commercial Agents and Private Inquiry Agents Act 2004 s 4(1) 3.15 s 5 3.15 s 11 3.15 Sch 2 cl 2 13.20 Sch 2 cl 3(1) 13.15 Sch 2 cl 10 13.20 Sch 2 cl 11 13.20 Sch 2 cll 14–19 13.20 Sch 2 Pt 3 13.21 Commercial Agents and Private Inquiry Agents Regulation 2006 Pt 2 3.15 Common Carriers Act 1902 s 9(c) 3.22 Conveyancing Act 1919

Page 2 of 7 New South Wales s 23C(1) 4.25 s 54A 3.7 s 54A(1) 4.25 s 159(2) 23.36 s 163B(2)(b) 7.11 Crimes Act 1900 s 249A 14.3, 14.6 s 249B(1) 14.6, 14.18 s 249B(2) 14.6, 14.18 s 249B(3) 14.9 s 249C 14.17, 14.18 s 249F 14.21 s 249G 14.18 s 249I 14.19 s 249J 14.10 Evidence Act 1995 s 87(1)(a) 22.73 s 87(1)(b) 22.73 s 87(2) 22.73 Factors (Mercantile Agents) Act 1923 s 5(1) 21.22 s 5(2) 21.22 s 10 21.22 Land Sales Act 1964 s 21 23.46, 23.48 Law Reform (Miscellaneous Provisions) Act 1946 s 5(2) 18.17 Legal Profession Act 2004 1.8 s 253 13.16 s 254 13.16 s 261(1)(a) 18.24 s 264 13.16 s 274(1) 13.16 s 406 10.4 Local Government Act 1993 14.3 Married Persons (Equality of Status) Act 1996 s 7 6.13

Page 3 of 7 New South Wales Minors (Property and Contracts) Act 1970 s 6 3.3 s 6(1) 3.2 s 46(1) 3.3 s 46(2) 3.3 s 46(3) 3.5 Motor Accidents Compensation Act 1999 s 112 4.18, 22.41 Motor Dealers Act 1974 s 29E(1) 13.17 s 29E(2) 13.17 s 29H 13.17 s 29I 13.17 Partnership Act 1892 1.8 s 1 1.48 s 5 20.40, 20.62, 24.43 s 5(1) 1.48 s 6 24.43 s 8 20.40, 20.62 s 10 22.1, 22.7 s 12 22.1 s 15 22.67 s 16 22.57 s 19 20.62 s 24(1) 3.28 s 33 25.19 Powers of Attorney Act 2003 1.30 s 3(1) 1.30 s 8 4.29 s 9(2) 7.1 s 10 3.17 s 12(1) 7.11, 10.10, 12.5 s 12(2) 10.10 s 16(1) 26.6 s 19 1.30, 4.29, 26.1 s 21 1.30 s 21(1) 1.30, 26.1 s 21(2) 26.1

Page 4 of 7 New South Wales s 33 26.5 s 36 13.12, 26.5 s 43(1) 23.36 s 43(2) 23.36 s 45 9.1 s 47 26.10 s 48(2) 26.14 s 49 25.28 s 51 4.30 s 51(2) 26.4 s 52(1) 4.30 s 52(2) 4.30 Powers of Attorney Amendment Act 2013 4.29 Property, Stock and Business Agents Act 2002 1.8, 13.14 s 3(1) 1.27, 3.15, 13.14, 13.21, 17.2, 17.6, 17.24 s 8 3.10 s 8(2) 3.10, 17.2 s 10 3.10 s 11 3.10 s 14 3.10 ss 14–16 3.10 s 15 3.10 s 33(1) 17.31 s 34(1) 17.31 s 36 16.22, 17.6 s 36(1) 17.24 s 36(2) 17.24 s 36(3) 17.24 s 36(4) 17.24 s 46(1) 11.14 s 47 12.11 s 48 12.43 s 49(1) 12.31 s 49(2) 12.31 s 49(3) 12.31 s 49(4)–49(6) 12.31 s 51(1) 24.41 s 51(2) 24.41 s 51(4) 24.41

Page 5 of 7 New South Wales s 51(5) 24.41 s 52(1) 24.41 s 52(2) 24.41 s 52(3) 24.41 s 55 18.20 s 55(1) 17.6 s 55(4) 17.6 s 55(5) 17.6 s 55A(1) 17.6 s 55A(2) 17.6 s 55A(3) 17.6 s 55A(4) 17.6 s 58(3) 16.22 s 58(4) 16.22 s 59 25.18 s 59(1) 17.34 s 59(5) 25.18 s 60 17.34, 25.18 s 61(2) 17.34 s 61(3) 17.34 s 62 17.34, 25.18 s 64(1) 7.13 s 64(2) 7.15 s 64(3) 7.15, 11.28 s 72 11.30 s 73 11.30 s 73(1) 24.42 s 73(2) 24.42 s 74 11.30, 24.42 s 75 11.30, 24.42 s 80 24.41 s 86(1) 13.14 s 88(1) 13.15 ss 96–99 13.14 s 104 13.14 ss 111–112A 13.14 s 230(2)(b) 17.30 Pt 2 3.15 Pt 9 13.21 Pt 10 13.22

Page 6 of 7 New South Wales Pt 12 3.10 Property, Stock and Business Agents Amendment Act 2013 17.6 Property, Stock and Business Agents Regulation 2003 cl 5 1.27 cl 9 17.24 cl 10 11.14 cl 12(1) 17.6 cl 13 17.6 cl 18(1)(c) 23.67 cl 18(1)(e) 23.67 Pt 4 13.14 Pt 5 13.14 Sch 1 10.27 Sch 1 cl 7 12.31 Sch 7 cl 9 17.29 Schs 7–14 17.6 Property, Stock and Business Agents Regulation 2003 (NSW) cl 10 11.14 Sale of Goods Act 1923 s 3 21.22, 21.24 s 5 21.26 s 6(1) 21.33 s 6(2) 21.22 s 6(3) 21.22 s 6(5) 21.22 s 7 21.22 s 8 21.22 s 9(1)(a) 21.34 s 9(1)(b) 21.34 s 9(1)(c) 21.35 s 9(1)(d) 21.35 s 9(2) 21.35 s 26(1) 20.1, 21.21 s 28 21.25 s 28(1) 20.1 s 28(2) 18.31, 20.1 Sea-Carriage Documents Act 1997 s 12 7.4

Page 7 of 7 New South Wales Secret Commissions Prohibition Act 1919 14.1 Strata Schemes (Freehold Development) Act 1973 s 20 1.7 s 24(2) 1.7 Travel Agents Act 1986 s 6(1) 3.15 s 6(2) 17.3 s 10(1) 13.22 s 11(2)(a) 13.22 s 38(2) 17.3 s 38(3) 17.3 s 41 13.20 s 57(2) 13.22 Trustee Act 1925 s 51 3.31 s 52 3.31 s 53 3.31 s 58 26.12 s 64 3.31 Uncollected Goods Act 1995 6.7 Water Act 1912 s 20(2) 3.20

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Northern Territory Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Table of Statutes > Table of Statutes

Northern Territory Please click on the link below to download the entire chapter. Age of Majority Act 1974 s 4 3.1 Agents Licensing Act 1979 1.8 s 5(2) 1.27, 3.15, 12.31, 13.14, 13.21, 17.2, 17.7, 17.28, 17.31, 18.45 s 17 3.10 s 18 3.10 s 20 3.8 ss 22–25A 3.10 s 22(1) 3.8 ss 33–48 3.10 s 49 2.16, 13.14 s 52(4) 13.14 s 53 13.15 s 55 13.14 s 57 13.14 ss 58–63 13.14 s 65(1)(b) 12.31 s 65(1)(h) 12.31 s 65(1)(k) 17.27 s 65E(1) 17.7 s 65E(2) 17.7 s 65E(3) 25.34 s 65E(6) 18.45 ss 66–70 3.10 s 108F 12.34 s 108F(2) 12.31 s 108G(1) 12.31 s 108G(2) 12.31 s 108G(3) 12.35 s 108G(4) 12.31, 17.28 s 108G(5) 12.31

Page 2 of 5 Northern Territory s 108G(6) 12.31 s 108G(7) 12.31 s 108H(1) 12.31 s 108H(4) 12.31 s 112(1) 17.31 s 114 3.10 s 115 24.41 s 121 3.10, 17.2 Pt VIII 13.21 Pt XII 13.22 Pt XIIA 10.4 Agents Licensing Regulations 1979 Pt III 13.14 Pt IIIA 10.4 Auctioneers Act 1935 ss 4–9 3.15 s 7(2) 3.8 s 13 24.41 s 18 3.15 Commercial and Private Agents Licensing Act 1979 s 3 3.15, 17.3 s 5 3.15 s 23 13.20 s 24 13.15 s 25 13.20 s 40 17.3 Pt 2 3.15 Consumer Affairs and Fair Trading Act 1990 s 172(1) 4.27, 17.23 s 172(6) 4.27, 17.23 s 173 13.17 s 188(1) 3.15 s 188(2) 17.3 s 188(4) 17.3 s 193(6) 13.22 s 212 13.20 s 220 13.22 s 221 13.22

Page 3 of 5 Northern Territory Criminal Code s 236 14.23 Evidence (National Uniform Legislation) Act 2011 s 87(1)(a) 22.73 s 87(1)(b) 22.73 s 87(2) 22.73 Law of Property Act 2000 s 10(1) 4.25 s 58 1.14 s 62 3.7, 4.25 Law Reform (Miscellaneous Provisions) Act 1956 s 13 18.17 Legal Profession Act 2006 1.8 s 246 13.16 s 247 13.16 s 254(1)(a) 18.24 s 257 13.16 s 270(1) 13.16 s 376 10.4 Married Persons (Equality of Status) Act 1989 s 5 6.13 Motor Accidents (Compensation) Act 1979 s 4(1) 22.41 s 6 22.41 Motor Accidents (Compensation) Act 1979 (NT) s 4(1) 4.18 s 6 4.18 Partnership Act 1997 1.8 s 9 1.48 s 9(2) 20.40, 20.62, 24.43 s 10(1) 24.43 s 12 20.40, 20.62 s 14 22.1, 22.7 s 16 22.1 s 19 22.67 s 20 22.57 s 23 20.62

Page 4 of 5 Northern Territory s 28(j) 3.28 s 37(1) 25.19 Powers of Attorney Act 1980 1.30 s 6(1)–(3) 26.4 s 6(1)–(4) 4.29 s 7(1) 4.30, 26.4 s 8(1) 4.30 s 8(2) 4.30 s 10(2) 23.36 s 10(3)(a) 23.37 s 11 13.18 s 13 1.30, 26.1 s 13(b) 4.29 s 13(c) 4.29, 4.30 s 14 4.29 s 15 13.12, 26.5 s 16 26.2 s 17(2) 26.2 s 17(2)(a) 26.1 s 19(1) 26.7 s 19(2) 26.7 s 20 26.10 s 21 26.15 Proportionate Liability Act 2005 22.2 Sale of Goods Act 1972 s 7 21.22 s 8 21.22, 21.34 s 9 21.22, 21.33 s 10 21.35 s 11 21.35 s 26(1) 20.1, 21.21 s 28(1) 20.1 s 28(2) 18.31, 20.1 Sea-Carriage Documents Act 1998 s 12 7.4 Trustee Act 1893 s 17 3.31 s 25 26.12

Page 5 of 5 Northern Territory Trustee Act 1907 s 3 3.31 Uncollected Goods Act 2004 6.7

End of Document

Queensland Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Table of Statutes > Table of Statutes

Queensland Please click on the link below to download the entire chapter. Auctioneers and Agents Act 1971 ss 39–44 3.15 s 76(1)(c) 17.18 Civil Liability Act 2003 s 22(1) 11.26 s 22(2) 11.26 s 22(3) 11.26 s 22(4) 11.26 Ch 2 Pt 2 22.2 Criminal Code s 442A(1) 14.3, 14.6, 14.8, 14.9 s 442A(2) 14.21 s 442B 14.6 s 442BA 14.6 s 442C(1) 14.9 s 442C(2) 14.9 s 442D 14.17 s 442I(a) 14.18 s 4421(b) 14.18 s 442J 14.19 s 442K 14.20 s 442L 14.20 s 442M(1) 14.10 s 442M(2) 14.15 s 442M(3) 14.18 Disposal of Uncollected Goods Act 1967 6.7 Factors Act 1892 s 3(1) 21.22 s 3(2) 21.22 s 14 21.22

Page 2 of 8 Queensland Fair Trading Act 1989 s 39 24.28 Hire–Purchase Act 1959 s 33(1)(e) 1.33 Introduction Agents Act 2001 1.8 Law Reform Act 1995 s 7 18.17 s 17 3.2 Legal Profession Act 2007 1.8 s 248 13.16 s 249 13.16 s 258(1)(a) 18.24 s 261 13.16 s 268(1) 13.16 s 353 10.4 Local Government (Planning and Environment) Act 1990 s 4.3(9)(a) 3.20 Motor Accident Insurance Act 1994 s 23 4.18, 22.41 Partnership Act 1891 1.8 s 5 1.48 s 8 1.48, 20.40, 20.62, 24.43 s 9 24.43 s 11 20.40, 20.62 s 13 22.1, 22.7 s 15 22.1 s 18 22.67 s 19 22.57 s 22 20.62 s 27(9) 3.28 s 36 25.19 Powers of Attorney Act 1998 1.30 s 3(1) 1.30 s 8 3.16 s 10(1) 26.7 s 10(2) 26.7

Page 3 of 8 Queensland s 11 4.29 s 12(1) 4.29 s 12(2) 4.29 s 17(1) 26.4 s 18(1) 26.2 s 19 26.2 s 20 26.2 s 21 26.2 s 22 26.2 s 23 26.2 s 24 26.2 s 25(1) 4.30, 26.4 s 25(2) 4.30, 26.4 s 25(2), 60(1), 60(2) 26.4 s 25(3) 26.4 s 26(1) 25.47 s 29(1)(a)(i) 3.8 s 32 1.30 s 32(1)(a) 7.4 s 32(2) 26.1 s 44 4.29 s 49 26.4 s 51 26.2 s 52 26.2 s 52A 26.2 s 53 26.2 s 53A 26.2 ss 54–58 26.2 s 55 26.2 s 60(1) 4.30 s 60(1), 60(2) 26.4 s 60(2) 4.30, 26.4 s 60(3) 26.4 s 61 25.47 s 67 11.4 s 69(1) 23.36 s 69(2) 23.37 s 69(3) 23.36 s 69(4) 23.36 s 71 25.28

Page 4 of 8 Queensland s 74(1) 12.61 s 74(2) 12.61 s 74(4) 12.61 s 77 7.4 s 82 26.2 s 85 13.18 s 86 13.18 s 87 12.62 s 98 26.11 s 99(2) 26.17 s 99(3) 26.17 s 106(1) 12.61 s 113(2) 26.11, 26.17 s 114 26.11, 26.17 s 116 26.5 s 122 13.12 Private Employment Agents (Code of Conduct) Regulation 2005 10.27 s 14 12.31 s 18 17.27 s 19 17.27 s 20(1) 17.29 Property Agents and Motor Dealers Act 2000 1.8, 13.14, 17.18 s 13 12.31 ss 35–45 3.8 s 74 3.10 s 75 3.10 ss 82–110 3.10 s 111(1) 3.15, 13.14, 13.21, 17.2 s 114 17.8 s 114(3) 17.29 s 115 17.8 s 117(1) 17.2 s 117(1)(c) 17.8, 18.20 s 117(2)–117(5) 17.30 s 126 12.43 s 128 1.27 ss 133–137 17.8 s 133(1) 4.27 s 133(3) 17.29

Page 5 of 8 Queensland s 140 17.2 s 140(1)(a) 3.10 s 140(1)(c) 17.8, 18.20 s 141 17.30 s 144(1)–144(3) 12.31 s 144(4) 12.31 s 145(1)–145(3) 12.31 s 145(4) 12.31 s 145A(1)–145A(3) 12.31 s 162 12.43 s 165(1) 3.15, 12.31, 13.14, 13.21, 17.2 ss 173–177 17.8 s 173(3) 17.29 s 179 17.2 s 179(1)(c) 17.8, 18.20 s 180 17.30 s 183(1)–183(3) 12.31 s 183(4) 12.31 s 184(1)–184(3) 12.31 s 184(4) 12.31 s 184A(1)–184A(3) 12.31 s 202 12.43 s 205(1) 3.15, 12.31, 13.14, 13.21, 17.2 ss 210–214 17.8 s 210(1) 4.27 s 210(3) 17.29 s 217 17.2 s 217(1)(c) 17.8, 18.20 s 218 17.30 s 221(4) 12.31 s 222(1)–222(3) 12.31 s 222(4) 12.31 s 222A(1)–222A(3) 12.31 s 258 12.43 s 262(1) 3.15, 13.21 s 279(1) 3.15, 12.31, 13.14, 13.21, 17.2 s 284 17.8 s 284(1) 4.27 s 284(3) 17.29 s 285 17.8

Page 6 of 8 Queensland s 288 17.2 s 288(1)(c) 17.8, 18.20 s 288(c) 17.23 s 291(1)–291(2) 12.31 s 291(3) 12.31 s 292(4) 12.31 s 292A(1)–292A(3) 12.31 s 336 12.43 s 339(1) 3.15, 13.14, 13.21, 17.2 s 344 17.8 s 344(1) 4.27 s 344(3) 17.29 s 345 17.8 s 346 17.2 s 346(1)(c) 17.8, 18.20 s 356 12.43 s 378 13.14, 13.17 s 379 13.14, 13.17 s 383 13.15 s 384 13.14 s 385 13.14 s 385(5) 13.14 s 386(3) 13.17 ss 400–407 13.14 s 401 13.17 s 402 13.17 s 408 12.31 ss 417–439 13.21 s 470(1)(a) 12.31 s 490 12.31 ss 496–500 3.10 s 573A–574E 24.41 s 574(1)–574(3) 24.41 s 574(4) 24.41 s 574(5) 24.41 s 574(7) 24.41 s 574A(5) 11.29 s 574C(1) 11.29 s 574C(2) 11.29 s 579(1) 17.30

Page 7 of 8 Queensland s 579(3) 17.30 Ch 12 Pt 4 Div 3 13.21 Ch 14 Pt 2 13.22 Sch 3 12.31 Property Agents and Motor Dealers (Auctioneering Practice Code of Conduct) Regulation 2001 10.27 s 39 12.31 Property Agents and Motor Dealers (Commercial Agency Practice Code of Conduct) Regulation 2001 10.27 s 35 12.31 Property Agents and Motor Dealers (Motor Dealing Practice Code of Conduct) Regulation 2001 10.27 Property Agents and Motor Dealers (Property Developer Practice Code of Conduct) Regulation 2001 10.27 Property Agents and Motor Dealers (Real Estate Agency Practice Code of Conduct) Regulation 2001 10.27 s 40 12.31 Property Agents and Motor Dealers (Restricted Letting Agency Practice Code of Conduct) Regulation 2001  10.27 s 35 12.31 Property Law Act 1974 s 11 4.25 s 46 23.36 s 56 1.14 s 59 3.7, 4.25 Relationships Act 2011 26.2 Sale of Goods Act 1896 s 2(1) 21.22, 21.24 s 2(2) 21.22 s 3(3) 21.22 s 3(4) 21.33 s 4 21.22 s 5 21.22 s 6 21.22 s 13(1) 21.34 s 13(2) 21.34, 21.35 s 13(3) 21.35 s 24(1) 20.1, 21.21 s 27(1) 20.1 s 27(2) 18.31, 20.1 Sea-Carriage Documents Act 1996 s 10 7.4

Page 8 of 8 Queensland Travel Agents Act 1988 s 12(1) 3.15 s 12(2) 3.15 s 12(3) 17.3 s 12(4) 17.3 s 12(5) 17.3 s 18(1)(e) 13.22 s 18(2) 13.22 s 20(1)(b) 13.22 s 33 13.20 s 36 13.22 s 37 13.22 Trusts Act 1973 s 51 3.31 s 52 3.31 s 54 3.31 s 54(3) 3.31 s 56 3.31 s 70 26.12

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South Australia Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Table of Statutes > Table of Statutes

South Australia Please click on the link below to download the entire chapter. Age of Majority (Reduction) Act 1971 s 3 3.2 Business (Sale and Conveyancing) Act 1994 s 24 15.57 Civil Liability Act 1936 s 41(1) 11.26 s 41(2) 11.26 s 41(3) 11.26 s 41(4) 11.26 Criminal Law Consolidation Act 1935 s 146 14.24 s 146(1) 14.24 s 146(1)(a) 14.24 s 147 14.24 s 148(1) 14.24 s 148(2) 14.24 s 149 14.24 s 150(1) 14.25 s 150(2) 14.25 s 150(3) 14.25 s 150(4) 14.25 s 150(5) 14.25 s 151 14.26 Criminal Law Consolidation (Offences of Dishonesty) Amendment Act 2002 14.1 Employment Agents Registration Act 1993 s 3 3.15, 17.3 s 6 3.15 s 14 17.3 Pt 2 3.15 Equal Opportunity Act 1984

Page 2 of 6 South Australia s 31(3) 18.5 Land Agents Act 1994 1.8, 13.14 s 4 1.27, 17.31, 17.33 s 4(1) 10.18 s 6(2)(a) 17.2 s 6(2)(b) 17.9 s 6(3) 17.9 s 6A 3.10 s 6B 3.15 s 8 3.8 s 8A 3.10 s 8B 3.10 s 8C 3.15 s 13(1) 13.14 s 14 13.14 s 21 13.14 s 22 13.14 ss 42–48 3.10 Pt 3 Div 3 13.22 Land and Business (Sale and Conveyancing) Act 1994 s 5 17.33 ss 7–9 17.33 s 13 17.33 s 15 17.33 s 18(2) 17.33 s 19 17.33 s 20 18.20 s 20(1) 17.9 s 20(3) 4.27 s 20(6a) 25.7 s 20(6c) 25.7 s 20(6e) 25.7 s 20(7) 17.9 s 20(11) 25.7 s 21 11.19 s 22 11.19 s 23(1) 17.33 s 23(2) 17.33 s 23(3) 17.33

Page 3 of 6 South Australia s 24 12.11 s 24A(1)(d) 24.42 s 24A(2) 24.42 s 24A(2)(a) 11.30 s 24A(2)(b) 11.29 s 24A(3) 11.29 s 24A(4) 11.29 s 24B(1) 11.14 s 24C 12.11 s 24D(6) 12.11 s 24D(8) 12.11 s 24F 12.43 s 24G(1) 12.31 s 24G(2) 12.31 s 24G(3) 12.31 s 24G(4) 12.31 s 24G(5) 12.31 s 24G(6) 12.31 s 24G(7) 12.31 s 24G(8) 12.31 s 24G(9) 12.31, 17.28 s 24G(10) 17.28 s 24G(11) 12.31 s 24H(1) 17.31 s 36(1) 24.41 s 37 9.2 Pt 2 17.33 Land and Business (Sale and Conveyancing) Regulations 2010 Sch 4 11.14 Law of Property Act 1936 s 26(1) 3.7, 4.25 s 29(1) 4.25 s 104 6.13 Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 s 6(5) 18.17 s 6(7) 18.17 Pt 3 22.2 Legal Practitioners Act 1981 1.8

Page 4 of 6 South Australia s 19 10.4 s 31 13.16 s 31(4) 13.16 s 33 13.16 Legal Practitioners Regulations 2009 reg 11 13.16 Mercantile Law Act 1936 s 4(1) 21.22 s 4(2) 21.22 s 12 21.22 Mercantile Law Amendment Act 1861 s 8 21.22 Minors Contracts (Miscellaneous Provisions) Act 1979 s 4 3.3, 5.14 s 8(1) 3.3 s 8(2) 3.3 Misrepresentation Act 1972 s 7(1) 24.39 Motor Vehicles Act 1959 s 99A(8) 4.18, 22.41 Sch 4 4.18 Sch 4 22.41 Partnership Act 1891 1.8 s 1 1.48 s 5 1.48, 20.40, 20.62, 24.43 s 6 24.43 s 8 20.40, 20.62 s 10 22.1, 22.7 s 12 22.1 s 15 22.67 s 16 22.57 s 19 20.62 s 24(ix) 3.28 s 33 25.19 Powers of Attorney and Agency Act 1984 1.30 s 5(1) 4.29, 4.30 s 5(2) 7.1

Page 5 of 6 South Australia s 5(3) 3.16 s 5(4) 3.17 s 6 1.30 s 6(1) 4.29 s 6(2) 4.29 s 6(3) 1.30, 26.1 s 8 13.18 s 9 26.2 s 11 13.12, 26.5 s 12(1) 25.45, 26.9 s 12(2) 25.45, 26.13 s 13(1) 23.17, 23.36 Real Property Act 1886 s 155 26.4 s 157 26.4 Registration of Deeds Act 1935 4.30 Sale of Goods Act 1895 s 3(1) 21.22, 21.24 s 3(2) 21.22 s 4(3) 21.22 s 4(4) 21.33 s 5 21.22 s 6 21.22 s 7 21.22 s 11(1) 21.34 s 11(2)(a) 21.34 s 11(2)(b) 21.35 s 11(2)(c) 21.35 s 11(3) 21.35 s 21(1) 20.1, 21.21 s 25(1) 20.1 s 25(2) 18.31, 20.1 Sea-Carriage Documents Act 1998 s 11 7.4 Secret Commissions Prohibition Act 1920 14.1 Security and Investigation Agents Act 1995 s 3 3.15, 17.3 s 6(1) 3.15

Page 6 of 6 South Australia s 6(2) 17.3 s 17 24.41 Statutes Amendment (Real Estate Reform Review and Other Matters) Act 2013 11.29, 25.7 Statutes Amendment (Real Estate Industry Reform) Act 2007 11.19 Travel Agents Act 1986 s 7(1) 3.15 s 7(2) 3.15 s 7(4) 17.3 s 7(5) 17.3 s 8(9)(c); 13.22 s 11 17.3 s 18 13.20 s 19 13.22 s 20 13.22 Trustee Act 1936 s 17 3.31 s 24 3.31 Unclaimed Goods Act 1987 6.7

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Tasmania Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Table of Statutes > Table of Statutes

Tasmania Please click on the link below to download the entire chapter. Age of Majority Act 1973 s 3 3.2 Civil Liability Act 2002 s 22(1) 11.26 s 22(2) 11.26 s 22(3) 11.26 s 22(4) 11.26 Pt 9A 22.2 Conveyancing and Law of Property Act 1884 s 36 3.7 s 36(1) 4.25 s 60(2) 4.25 Criminal Code s 266(1) 14.6 s 266(2) 14.17 s 266(3)(a) 14.3 s 266(3)(b) 14.6 s 266(3)(c) 14.6 s 266(4) 14.15 s 266(5) 14.10 Disposal of Uncollected Goods Act 1968 6.7 Evidence Act 2001 s 87(1)(a) 22.73 s 87(1)(b) 22.73 s 87(2) 22.73 Factors Act 1891 s 5(1) 21.22 s 5(2) 21.22 s 16 21.22

Page 2 of 6 Tasmania Legal Profession Act 2007 1.8 s 45 10.4 s 242 13.16 s 243 13.16 s 252(1)(a) 18.24 s 255 13.16 s 266(1) 13.16 Lending of Money Act 1915 s 13(1)(a) 3.21 Mercantile Law Act 1935 s 6 1.14, 4.24 Motor Accidents (Liabilities and Compensation) Act 1973 s 14(1) 4.18, 22.41 Motor Vehicle Traders Act 2011 s 33 13.17 Partnership Act 1891 1.8 s 6 1.48 s 10 1.48, 20.40, 20.62, 24.43 s 11 24.43 s 13 20.40, 20.62 s 15 22.1, 22.7 s 17 22.1 s 20 22.67 s 21 22.57 s 24 20.62 s 29(i) 3.28 s 38 25.19 Powers of Attorney Act 2000 1.30 s 16 4.30 s 17 26.4 s 18(1) 4.29 s 20 3.16, 7.1 s 21 7.1 s 23(1) 23.36 s 23(2) 23.36 s 24 26.6 s 25 26.6 s 27(1) 26.2

Page 3 of 6 Tasmania s 28(1) 26.14 s 30 1.30 s 30(1) 4.29 s 30(1)(a) 26.1 s 30(2) 4.29 s 30(4) 1.30, 26.1 s 31 3.16 s 31(1) 7.1 s 31(1)(b) 25.6 s 31(2) 7.1 s 32(1) 13.18 s 32(2) 9.1 s 33 26.5 s 51(1) 26.10 s 51(2) 26.10 s 52 26.14 Pt 3 Div 2 4.30 Property Agents and Land Transactions Act 2005 1.8 s 3(1) 1.27, 13.21, 17.2 s 10 3.10 s 17B 3.10 s 18(1) 17.10, 25.7 s 18(2)(c) 17.29 s 18(2)(d) 17.29, 18.20 s 18(3) 17.10 s 18(4) 17.10 s 18(5) 17.10 s 18(6) 17.10 s 18(7) 25.7 s 18(8) 25.7 s 18(9) 25.7 s 19 17.10 s 19(2)(c) 17.29 s 19(2)(d) 17.29, 18.20 s 19(7) 25.7 s 20 12.11 s 21(1) 3.10, 17.2 s 21(2) 17.24 s 21(3) 17.2

Page 4 of 6 Tasmania s 21(4) 17.24 s 22(1) 12.31 s 22(2) 12.31 s 22(3) 12.31 s 22(5) 12.31 s 22(6) 12.31 s 22(7) 12.31 s 22(8) 12.31 s 22(9) 12.31, 17.28 s 22(10) 12.31, 17.28 s 23(1) 12.35 s 23(1)(d) 12.35 s 23(2) 12.35 s 23(3) 12.35 s 29 24.41 s 30 24.41 s 33 3.15 s 38 24.41 s 39 24.41 s 53 17.10 s 53(2)(c) 17.29 s 53(2)(d) 17.29, 18.20 s 54 12.11 s 55(1) 3.10, 17.2 s 55(2) 17.24 s 57 3.15 ss 64–67 3.8 s 82(1) 17.27 s 95(3) 17.27 ss 129–141 13.21 s 142 10.4 s 143 10.4 s 144(1) 2.16, 13.14 s 144(2) 13.14 s 145(1) 13.14 s 182 17.34 s 200 25.18 s 202(1) 17.33, 17.34 s 202(2) 17.33 s 202(3) 17.33, 17.34

Page 5 of 6 Tasmania s 203 17.33 s 204 17.34, 25.18 s 204(4) 17.34 s 205 17.34, 25.18 s 206 17.34, 25.18 Pt 6 3.10 Pt 9 13.22 Property Agents and Land Transactions Regulations 2006 reg 42(2) 3.10 Pt 2 13.14 Pt 4 13.14 Sch 2 10.27 Property Agents' Board Code of Conduct cl 4 17.27 Sale of Goods Act 1896 s 3 21.22, 21.24 s 3(b) 21.22 s 5(3) 21.22 s 5(4) 21.33 s 6 21.22 s 7 21.22 s 8 21.22 s 15(1) 21.34 s 15(2) 21.34, 21.35 s 15(3) 21.35 s 26(1) 20.1, 21.21 s 30(1) 20.1 s 30(2) 18.31, 20.1 Sea-Carriage Documents Act 1997 s 11 7.4 Security and Investigations Agents Act 2002 1.8 s 3 3.15, 17.3 s 23 17.3 s 28 13.20 s 28(2)(c) 13.15 s 29 13.20 s 30 13.20 s 32 13.20

Page 6 of 6 Tasmania Pt 2 3.15 Travel Agents Act 1987 s 18(1) 3.15 s 18(2) 3.15 s 18(3) 17.3 s 21(1) 13.22 s 22(2)(a) 13.22 s 43 13.20 s 45(1) 17.3 s 45(2)–45(4) 17.3 s 55(2)(m) 13.22 s 55(3) 13.22 Trustee Act 1898 s 20 3.31 s 25AA 3.31 s 26 26.12 Wrongs Act 1954 s 3(2) 18.17

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Victoria Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Table of Statutes > Table of Statutes

Victoria Please click on the link below to download the entire chapter. Age of Majority Act 1977 s 3 3.2 Australian Consumer Law and Fair Trading Act 2012 Pt 4.2 6.7 Crimes Act 1958 s 175(1) 14.3, 14.6, 14.8, 14.9 s 175(2) 14.21 s 176 14.18 s 176(1) 14.6 s 176(2) 14.6 s 177(1) 14.9 s 177(2) 14.9 s 178 14.17, 14.18 s 181 14.21 s 184 14.20 s 184(a) 14.20 s 185 14.20 s 186(1) 14.10 s 186(2) 14.15 Estate Agents Act 1958 s 33(1)(b) 17.17, 17.20 s 49A(1) 17.20 Estate Agents Act 1980 1.8 s 4 1.27 s 12 17.2 s 13A 9.8 s 13B 3.15 s 14 3.8 s 16 3.10 s 22 3.10

Page 2 of 6 Victoria s 29 3.10 s 38 3.10 s 42(4) 24.41 s 42(5) 24.41 s 47A(1) 11.29 s 47A(2) 11.29 s 47A(3) 11.29 s 47B 11.30 s 47C(1) 24.42 s 47C(2) 24.42 s 47D 11.30, 24.42 s 48(1)–48(3) 17.31 s 48(4) 17.31 s 48A 17.28 s 48A(1) 12.11 s 48A(2) 12.11 s 48A(3) 12.11 s 48B 12.11, 17.28 s 49A(1) 17.11, 18.20 s 49A(1)(c) 17.11 s 49A(1)(c)(i) 17.29 s 49A(1)(c)(ii) 17.29 s 49A(1)(c)(iii) 12.7 s 49A(2) 17.11, 18.20 s 49A(3) 13.14 s 49A(4) 12.7, 17.11, 18.20 s 50(1) 17.11, 18.20 s 50(1)(a) 3.10, 17.2 s 50(1)(c) 17.28 s 50(4) 17.30 s 50(5) 17.30 s 54 25.7 s 55(1) 12.31 s 55(2) 12.31 s 55(3) 12.31 s 55(4) 12.31 s 55(5) 12.31 s 55(6) 12.31 s 55(7) 12.31, 17.28 s 55(8) 12.31

Page 3 of 6 Victoria s 55(9) 12.31 s 55(10) 12.31 s 55(14) 12.31 s 55(15) 12.31 s 56 12.7, 16.18 s 59(1)(a) 2.16, 13.14 s 59(1)(b) 13.14 s 59(4) 13.15 s 63 13.14 ss 64–67 13.14 s 94 11.19, 12.43 s 94A(1) 17.2 s 94A(2) 17.2 Pt 3 3.15 Pt 7 13.22 Pt VII 17.2 Estate Agents (General, Accounts and Audit) Regulations 2008 Pt 3 13.14 Estate Agents (Professional Conduct) Regulations 2008 10.27 reg 7 12.31 reg 12 12.43 reg 16 11.19 reg 20 12.43 reg 24 11.19 Evidence Act 2008 s 87(1)(a) 22.73 s 87(1)(b) 22.73 s 87(2) 22.73 Fair Trading Act 1999 s 145 24.34 Goods Act 1958 s 27 20.1, 21.21 s 30 20.1 s 31 18.31, 20.1 s 65 21.22, 21.24 s 65 21.22 s 67(1) 21.22 s 67(2) 21.22

Page 4 of 6 Victoria s 68(a) 21.33 s 68(b) 21.22 s 68(c) 21.22 s 68(e) 21.22 s 69 21.22 s 70 21.22 s 81(a) 21.34 s 81(b) 21.34 s 81(c) 21.35 s 81(d) 21.35 Instruments Act 1958 s 106 4.29 s 107(1) 3.16, 4.29, 9.1 s 107(2) 3.17 s 107(3) 3.17 s 108(1) 23.36 s 108(2) 23.37 s 109(1) 26.7 s 110(1) 26.10 s 110(3) 26.14 s 110(5) 26.10 s 115(2) 1.30, 26.1 s 119(4) 3.8 ss 123–125B 4.29 s 125D 13.18 s 125E(1) 23.36 s 125E(2) 23.37 s 125E(3) 23.36 s 125H(2) 26.1 s 125I 26.4 s 125K 26.2 s 125L 26.2 s 125M(2) 26.2 s 125N 26.2 s 125O 26.2 s 125P 26.2 s 125Q 26.5 s 125R 4.32 s 125U(1) 26.10

Page 5 of 6 Victoria s 125X 26.5 s 125ZB 13.12 s 126 1.14, 3.7, 4.25, 8.19 Pt XI 1.30 Pt XIA 1.30 Legal Profession Act 2004 1.8 s 3.3.11 13.16 s 3.3.13 13.16 s 3.3.20(1)(a) 18.24 s 3.3.25 13.16 s 3.3.52(1) 13.16 s 3.5.2 10.4 Motor Car Traders Act 1986 s 36 13.17, 17.23 Partnership Act 1958 1.8 s 5 1.48 s 9 1.48, 20.40, 20.62, 24.43 s 10 24.43 s 12 20.40, 20.62 s 14 22.1, 22.7 s 16 22.1 s 19 22.67 s 20 22.57 s 23 20.62 s 28(9) 3.28 s 37 25.19 Property Law Act 1958 s 53(1) 4.25 s 69 8.7 s 73B 4.22 Sale of Land Regulations 2005 reg 5, Schs 1–4 23.67 Sea-Carriage Documents Act 1998 s 12 7.4 Secret Commissions Prohibition Act 1905 14.1 Transport Accident Act 1986 s 35 4.18, 22.41

Page 6 of 6 Victoria Travel Agents Act 1986 s 6(1) 3.15 s 6(2) 17.3 s 10(1) 13.22 s 11(2)(a) 13.22 s 35(1) 17.3 s 35(2)–35(4) 17.3 s 39 13.20 s 46 13.22 Trustee Act 1958 s 26 3.31 s 27 3.31 s 28 3.31 s 28(3) 3.31 s 30 3.31 s 35(2) 26.12 Wrongs Act 1958 s 24(2) 18.17 s 59(1) 11.26 s 59(2) 11.26 s 59(3) 11.26 s 59(4) 11.26 Pt IVAA 22.2

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Western Australia Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Table of Statutes > Table of Statutes

Western Australia Please click on the link below to download the entire chapter. Age of Majority Act 1972 s 5 3.2 Associations Incorporations Act 1987 s 35 3.26 Auction Sales Act 1973 s 24(1) 24.41 s 24(2) 24.41 s 26 13.14 s 27 13.14 s 30(5) 12.31 s 30(6) 12.31 Civil Liability Act 2002 s 5PB 11.26 Pt 1F 22.2 Criminal Code s 529 14.6 s 530 14.6 s 531(1) 14.9 s 531(2) 14.9 s 532 14.17 s 536 14.21 s 538(a) 14.18 s 538(b) 14.18 s 539 14.19 s 540(a) 14.20 s 540(b) 14.20 s 541 14.20 s 542 14.10 s 543 14.15 s 546(1) 14.3

Page 2 of 6 Western Australia s 546(2) 14.6 s 546(4) 14.6 s 546(5) 14.6 s 546(6) 14.6 s 546(8) 14.21 s 546(9) 14.9 s 546(10) 14.8 s 546(11) 14.6 Disposal of Uncollected Goods Act 1970 6.7 Employment Agents Act 1976 1.8 s 5 3.15, 17.3, 17.13, 17.30 s 12 3.15 ss 12–27 3.15 s 29(1) 24.41 s 29(2) 24.41 s 29(3) 24.41 s 32 17.30 s 33 17.3 s 34(a) 17.28 s 36(4) 17.13, 18.20 s 37(3) 17.13, 18.20 s 43(1) 13.20 s 51 13.2 Equal Opportunity Act 1984 s 12 18.5 s 35AD 18.5 s 35C 18.5 s 35Q 18.5 s 38 18.5 s 55 18.5 s 66C 18.5 s 66X 18.5 Factors Act 1823 21.20 Factors Act 1825 21.20 Factors Act 1842 (Imp) 21.20 s 3 21.22 Factors Act 1877 21.20

Page 3 of 6 Western Australia Factors Act 1889 21.20 Factors Acts Amendment Act 1878 s 2 21.22 Guardianship and Administration Act 1990 s 104 4.29 s 105 1.30 s 105(1) 26.1 s 105(2) 1.30, 26.1 s 107(1)(b) 13.18 s 109(1)(a) 13.12 s 109(1)(c) 26.5 s 109(3) 13.12, 26.5 Pt 9 1.30 Hire–Purchase Act 1959 s 28(1)(e) 1.33 Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 s 7(2) 18.17 Law Reform (Statute of Frauds) Act 1962 s 2 1.14 Legal Profession Act 2008 1.8 s 40 10.4 s 214 13.16 s 215 13.16 s 225(1)(a) 18.24 s 228 13.16 s 237(1) 13.16 Motor Vehicle (Third Party Insurance) Act 1943 s 3(1) 4.18, 22.41 s 4(1) 4.18, 22.41 Partnership Act 1895 1.8 s 7 1.48 s 13 24.43 s 15 20.40, 20.62 s 17 22.1, 22.7 s 19 22.1 s 22 22.67

Page 4 of 6 Western Australia s 23 22.57 s 26 1.48, 20.40, 20.62, 24.43 s 29 20.62 s 34(8) 3.28 s 44 25.19 Property Law Act 1969 1.30 s 34(1) 4.25 s 84(1) 23.36 s 84(2) 23.36 s 85(1) 26.9 s 85(2) 26.9 s 85(3) 26.16 s 86(1) 26.6 s 87(1) 26.6 s 124 23.52 s 125 23.52 Real Estate and Business Agents Act 1978 1.8 s 4(1) 1.27, 12.31, 16.11, 17.12, 17.28 s 27(1) 3.8 s 60(1) 3.10, 17.2, 17.12 s 60(2) 17.12 s 60(3) 17.12 s 60(4) 17.12 s 61(3b) 17.30 s 61(4) 15.31, 16.11 s 61(5) 17.30 s 61(6) 17.30 s 64(1) 12.31, 12.35 s 64(2) 12.31, 12.35 s 64(3) 12.31 s 64(4) 12.31, 17.28 s 64(5) 12.31, 17.28 s 68(1) 13.14 s 68(2) 13.15 s 68(3)–68(5) 13.14 s 68(6) 13.14 s 70 13.14 ss 101–106 3.10 Pt IV ss 42–55 3.10

Page 5 of 6 Western Australia Pt VIII 13.22 Sale of Goods Act 1895 s 3 21.22, 21.34 s 4 21.22, 21.33 s 5 21.34 s 7 21.35 s 21(1) 20.1, 21.21 s 25(1) 20.1 s 25(2) 18.31, 20.1 Sea-Carriage Documents Act 1997 s 12 7.4 Security and Related Activities (Control) Act 1996 s 11 3.15 s 15 3.15 s 27 3.15 s 29 3.15 s 34 3.15 s 36 3.15 ss 43–74 3.15 Settlement Agents Act 1981 s 3 17.3 s 26 3.15 s 43(1) 17.3 s 43(1)–43(5) 17.13 s 43(7) 18.45 s 44 17.30 s 49(1) 13.20 s 49(2) 13.15 s 51 13.20 Pt II 3.15 Pt V 13.22 Statute of Frauds 1677 (Imp) s 4 1.14, 3.7, 4.25 Travel Agents Act 1985 s 7(1) 3.15 s 12(7)(b)(ii) 13.22 s 13(2)(a) 13.22 s 31 17.3

Page 6 of 6 Western Australia s 32(1)–32(5) 17.3 s 41 13.20 s 59(2)(h) 13.22 Trustees Act 1962 s 50 3.31 s 51 3.31 s 53 3.31 s 53(3) 3.31 s 54 3.31 s 69 26.12

End of Document

Jamaica Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Table of Statutes > Table of Statutes

Jamaica Please click on the link below to download the entire chapter. Legal Profession Act 1971 s 12(1) 3.27

End of Document

New Zealand Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Table of Statutes > Table of Statutes

New Zealand Please click on the link below to download the entire chapter. Judicature Act 1908 s 94A 23.52 s 94B 23.52 Licensing Act Emergency Regulations 1942 reg 3(4) 3.23 Real Estate Agents Act 1976 s 62(b) 17.21

End of Document

United Kingdom Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Table of Statutes > Table of Statutes

United Kingdom Please click on the link below to download the entire chapter. Bribery Act 2010 14.11 Carriage of Goods by Sea Act 1992 s 4 7.4 Companies Act 1862 s 6 3.20 s 11 3.20 English Statute of Frauds 1677 3.7, 9.21 s 4 1.14, 3.7, 4.25 Prevention of Corruption Act 1906 s 1(1) 14.11 Torts (Interference with Goods) Act 1977 s 8(1) 13.25

End of Document

Texts Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Abbreviations > Abbreviations

Abbreviations Texts Please click on the link below to download the entire chapter. Balkin and Davis

R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis Butterworths, Australia, 2013

Baxt, Black and Hanrahan

R Baxt, A Black and P Hanrahan, Securities and Financial Services Law, 8th ed, LexisNexis Butterworths, Australia, 2012

Bowstead

P Watts and F M B Reynolds, Bowstead and Reynolds on Agency, 19th ed, Sweet & Maxwell, London, 2010 (including First Supplement to the 19th ed, 2012)

Carter

J W Carter, Contract Law in Australia, 6th ed, LexisNexis Butterworths, Australia, 2013

Cheng Han

T Cheng Han, The Law of Agency, Academy Publishing, Singapore, 2010

Dal Pont, Lawyers' Professional Responsibility

G E Dal Pont, Lawyers' Professional Responsibility, 5th ed, Lawbook Co, Sydney, 2013

Dal Pont, Equity and Trusts

G E Dal Pont, Equity and Trusts in Australia, 5th ed, Lawbook Co, Sydney, 2011

Dal Pont, Powers of Attorney

G E Dal Pont, Powers of Attorney, LexisNexis Butterworths, Australia, 2010

Fletcher

K L Fletcher, The Law of Partnership in Australia, 9th ed, Lawbook Co, Sydney, 2007

Ford

R P Austin and I M Ramsay, Ford's Principles of Corporations Law, 15th ed, LexisNexis Butterworths, Australia, 2013

Fridman

G H L Fridman, The Law of Agency, 7th ed, Butterworths, London, 1996

Greig and Gunningham

D W Greig and N A Cunningham, Commercial Law, 3rd ed, Butterworths, Sydney, 1988

Jacobs

J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia, 7th ed, LexisNexis Butterworths, Sydney, 2006

Meagher, Gummow and Lehane

R P Meagher, W M C Gummow and J R F Lehane, Equity: Doctrines and Remedies, 4th ed, LexisNexis Butterworths, Sydney, 2002

Powell

R Powell, The Law of Agency, 2nd ed, Pitman, London, 1961

Stoljar

S J Stoljar, The Law of Agency, Sweet & Maxwell, London, 1961

Restatement (3d)

Restatement of the Law — Agency, American Law Institute, 3d, 2006

Sutton

K C T Sutton, Insurance Law in Australia, 3rd ed, LBC Information Services, Sydney, 1999

End of Document

Statutes Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Abbreviations > Abbreviations

Statutes Please click on the link below to download the entire chapter.

Factors legislation ACT

Mercantile Law Act 1962

NSW

Factors (Mercantile Agents) Act 1923

NT

Mercantile Law Amendment Act 1861 (SA)

Qld

Factors Act 1892

SA

Mercantile Law Act 1936

Tas

Factors Act 1891

Vic

Goods Act 1958

WA

Factors Act 184211.

11.

11. There is also the Factors' Acts Amendment Act 1878 (WA) but this is cited in full where it is relevant.

Sale of goods legislation Please click on the link below to download the entire chapter. ACT

Sale of Goods Act 1954

NSW

Sale of Goods Act 1923

NT

Sale of Goods Act 1972

Qld

Sale of Goods Act 1896

SA

Sale of Goods Act 1895

Tas

Sale of Goods Act 1896

Vic

Goods Act 1958

WA

Sale of Goods Act 1895

Page 2 of 2 Statutes

Partnership legislation Please click on the link below to download the entire chapter. ACT

Partnership Act 1963

NSW

Partnership Act 1892

NT

Partnership Act 1997

Qld

Partnership Act 1891

SA

Partnership Act 1891

Tas

Partnership Act 1891

Vic

Partnership Act 1958

WA

Partnership Act 1895

End of Document

Legal Concept of ‘Agent’ Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 1: Definition > Chapter 1 Definition Page 3

Chapter 1 Definition [Current to September 2013] Please click on the link below to download the entire chapter. Legal Concept of ‘Agent’

1.1

Scope of term ‘agent’

1.1

Defining ‘agency’

1.4

Substance over form

1.5

Meaning in legislation

1.7

Fiduciary duties of agents

1.9

Onus of Proving Relationship One of Agency

1.10

Classification of Agents

1.11

Universal, general and special agents

1.11

Del credere agents

1.12

Definition

1.12

Proof of existence

1.13

Contract one of indemnity not guarantee

1.14

Liability of agent

1.15

Liability of principal

1.16

Commission agents

1.17

Form of commission agency

1.18

Non-exclusive agency contracts

1.20

‘Sole agents’

1.21

Mercantile agents Factors

1.23 1.23

Page 2 of 11 Legal Concept of ‘Agent’ Brokers Types of Agents

1.25 1.26

Estate agents

1.27

Auctioneers

1.29

Donees of powers of attorney

1.30

Finance brokers

1.31

Insurance intermediaries

1.34

Insurance brokers

1.34

Insurance agents

1.35

Distinction between insurance agents and brokers

1.36

Impact of statute

1.37

Stockbrokers

1.38

Lawyers

1.39

Page 4 Solicitors

1.39

Counsel

1.40

Company directors

1.41

Receivers

1.43

Liquidators

1.47

Partners

1.48

Forwarding agents

1.49

Travel agents

1.50

The Crown

1.51

Identifying the Principal

1.52

The importance of identifying the principal

1.52

Agent who acts in some way for both parties

1.53

Illustration — estate agents

1.54

Listing agents compared to selling agents

1.54

Page 3 of 11 Legal Concept of ‘Agent’ Purchaser's agent becoming agent for the vendor

1.55

The legal position

1.56

Legal Concept of ‘Agent’ Please click on the link below to download the entire chapter.

Scope of term ‘agent’

1.1 The legal concept of ‘agency’ is complicated by several factors. Most fundamentally is the absence of an accepted legal definition of the term ‘agent’1. Persons who may be termed ‘agents’ in ordinary parlance or in a contract or other instrument are not necessarily agents at law. Also, persons may be agents at law, but the agency forms part of a larger legal relationship,2. such as lawyers,3. receivers,4. company directors5. and partners in a partnership,6. all of whom are at least for some purposes agents. Employees may also in some contexts be properly characterised as agents.7. Four main scenarios may attract the argument that the relationship of principal and agent has been created. Two of these are ‘intra-agency’. A may allege that B is his or her agent to substantiate an allegation that B has breached a duty as agent owed to A.8. Alternatively, B may allege that he or she is A's agent in order to substantiate a claim against A for some contractual or other entitlement stemming out of the alleged agency.9. The remaining two scenarios target rights and obligations as between an alleged principal and a third party,10. which highlight why agency has been described as a ‘trilateral relationship’.11. It may involve a third party's claim

Page 5 against an alleged principal for the acts or defaults of an alleged agent, or it may be the alleged principal who maintains that an alleged agent has contracted with the third party on the principal's behalf.

1.

Nottingham v Aldridge [1971] 2 QB 739 of meanings’).

at 751

per Eveleigh J (‘The term “agent” is found in law with a variety

2.

Erikson v Carr (1945) 46 SR (NSW) 9 at 12–13

3.

As to lawyers as agents see 1.39, 1.40.

4.

As to receivers as agents see 1.43–1.46.

5.

As to company directors as agents see 1.41, 1.42.

6.

As to partners as agents see 1.48.

7.

As to employees as agents see 2.19, 2.20.

8.

As to agents' duties to their principals see Pt IV.

9.

As to agents' rights against their principals see Pt V.

per Jordan CJ.

10. As to principals' liability for the acts or defaults of their agents see Pt VI. 11. Cheng Han, p 9.

1.2

Page 4 of 11 Legal Concept of ‘Agent’ The narrowest legal definition of ‘agent’ connotes ‘an authority or capacity in one person to create legal relations between a person occupying the position of principal and third parties’.12. A broader conception covers ‘a person who is able, by virtue of the authority conferred upon him, to create or affect legal rights and duties as between another person, who is called his principal, and third parties’.13. Wider again is the characterisation of an agent as ‘a person who has authority to act on behalf of a principal, either generally or in respect of some particular act or matter’.14. Each of these definitions recognises agency as giving effect to the maxim qui facit per alium facit per se — a person who acts through another is deemed to act in person. Each also reveals that agency is defined in terms of its consequences.15. The definitions differ in so far as the act — perhaps more correctly, the scope of the authority16. — in question is concerned.

12. International Harvester Company of Australia Pty Ltd v Carrigan's Hazeldene Pastoral Company (1958) 100 CLR 644 at 652; BC5800260

per Dixon CJ, McTiernan, Williams, Fullagar and Taylor JJ (emphasis supplied). See also

L C Fowler & Sons Ltd v St Stephens College Board of Governors [1991] 3 NZLR 304 at 306 Davis (2000) 204 CLR 333; [2000] HCA 52; BC200005826 at [227] is best used in this context). 13. Petersen v Moloney (1951) 84 CLR 91 at 94 14. Erikson v Carr (1945) 46 SR (NSW) 9 at 12

per Thomas J; Scott v

per Gummow J (stating that the term ‘agency’

per Dixon, Fullagar and Kitto JJ (emphasis supplied). per Jordan CJ (emphasis supplied). See also Smith v Stallard and

French (1919) 21 WALR 19 at 19–20 per McMillan CJ; R Stone, The Law of Agency, Cavendish, London, 1996, p 4 (‘Agency is a legal relationship under which one person (the agent) acts on behalf of another (the principal)’). 15. Fridman, p 11. 16. As to the scope of agents' authority see Pt III.

1.3 Although the concept of agency historically arose out of a person creating legal relations for another — as in the narrowest definition of agency cited above — the legal concept of agency is no longer so circumscribed. The broadest of the foregoing definitions highlights that an agent need not expose the principal to legal liability to attract the nomenclature ‘agent’, but need only be engaged by the principal to perform an act or acts; that is, render a service to the principal. A typical example is a commission agent17. employed by a vendor to find a purchaser for the vendor's goods or property and paid a commission on introducing a successful purchaser.18. Perhaps the main complication to this broadened concept of agency concerns the scope of the liability of a principal (often a vendor) for the acts or omissions of the agent. As a general rule, principals are liable for the acts and omissions of agents within the scope of their authority,19. but it is easier to accept the application of the general rule where the agent is conferred an authority to create or affect legal relations on the principal's behalf than it is where the agent is engaged merely to provide a service.

17. Of which most of the case law concerns real estate agents: see 1.27, 1.28. 18. As to commission agents see 1.17–1.22. Greig and Gunningham rationalise the inclusion of such persons within the legal nomenclature of ‘agents’ on the ground that the court is justified in imposing upon them fiduciary duties. They state (at [1.003]): ‘The answer to the question whether an individual employed to introduce business, but not to create legal relations between principal and third party, is in law an agent may depend therefore on whether the courts wish to impose a fiduciary standard upon that individual's conduct in relation to his “principal”’.The problem with this approach is that not all persons upon whom the law imposes fiduciary duties are necessarily agents. For this reason, it may be better to simply recognise commission agents and the like as legal agents by broadening the traditional legal definition of ‘agent’. 19. See 19.1, 22.1.

Page 5 of 11 Legal Concept of ‘Agent’

Defining ‘agency’

1.4 However agency is defined, there are elements commonly identified as essential to creating or recognising an agency relationship. In the usual scenario of an agency by agreement

Page 6 (sometimes termed ‘consensual agency’), discussed in Chapter 4, a crucial element is consent or assent, giving effect to the notion that a court will not impute an intention to create an agency relationship.20. On occasion in this context reference is also made to the principal's ability to control the agent, although, as argued elsewhere,21. this is better viewed not as a stand-alone element but as a corollary of what is arguably the central aspect of agency: a principal's conferral of authority on an agent.22. The latter highlights that agency relationships necessarily involve an agent acting in a representative capacity for the principal,23. whether for the purpose of creating contractual relations for a principal or to represent the principal in a more restricted ambit.24. Put another way, if the right by virtue of which the alleged agent acts is an independent right he or she already possessed, then he or she is not an agent;25. if it is, conversely, by virtue of some authority from another, then he or she is an agent.26. Thus even though the words or phrases ‘for’, ‘on behalf of’, ‘for the benefit of’ or even ‘authorise’ may be used in relation to services done to advantage the person who requests them, lacking a representation of that person to third parties, there is no agency.27. Indeed, a reason why the law imposes fiduciary duties upon agents is precisely because they act for or on behalf of another person, with whom third parties may not directly deal or have contact. Were A authorised to act in the name of B, but entitled at all times to ignore B's interests, act entirely on A's own behalf and advance A's own interests, this would deny a true relationship of agency.28.

Page 7

20. See 4.4–4.11. 21. See 4.13. 22. See 4.12. 23. Re Premier International Holdings Inc ,423 BR 58 at 65 (D Del Bkrtcy Ct 2010) (‘the plain meaning of “represent” contemplates an active appointment of an agent’). See also Yuen Chow Hin v ERA Realty Network Pte Ltd [2009] 2 SLR(R) 786; [2009] SGHC 28 at [13] per Choo Han Teck J (‘When a person has been appointed an agent of another, he becomes an extension of that other’). 24. NMFM Property Pty Ltd v Citibank Ltd (No 10) (2000) 107 FCR 270; [2000] FCA 1558; BC200006827 at [522] per Lindgren J (‘The notion of one person's having actual or apparent authority to act, or in fact acting, as representative of or for or on behalf of another person, is clearly central to the notion of agency’); Tonto Home Loans Australia Pty Ltd v Tavares (2011) 15 BPR 29,699; [2011] NSWCA 389; BC201110342 at [177] per Allsop P, with whom Bathurst CJ and Campbell JA concurred (‘Central is the conception of identity or representation of the principal’). 25. See, for example, 789Ten Pty Ltd v Westpac Banking Corporation Ltd (2005) 215 ALR 131; [2005] NSWSC 123; BC200501177 (where Bergin J held that ‘the fact that the Corporations Act [2001 (Cth)] requires an auditor to be independent of the audited company weighs against the implication that an auditor stands in the shoes of the audited company as its agent in receiving information from third parties about the company’: at [62]); Tonto Home Loans Australia Pty Ltd v Tavares (2011) 15 BPR 29,699; ;[2011] NSWCA 389; BC201110342 (where Allsop P, with whom Bathurst CJ and Campbell JA concurred, refused to find an agency relationship between the mortgage originators and the sub-introducers because, inter alia, the agreement between the parties was one ‘between two entities each of which had its own business’, wherein ‘[o]ne was to endeavour to introduce business from its own customer base for the mutual commercial advantage of both’: at [193]); Alliance Craton Explorer Pty Ltd v Quasar

Page 6 of 11 Legal Concept of ‘Agent’ Resources Pty Ltd (2013) 296 ALR 465; [2013] FCAFC 29; BC201301037 ; (where the fact that, under a mining joint venture agreement, the respondent, as manager, was virtually given carte blanche to decide how the mine was to be managed, when coupled with an express disclaimer of any agency relationship in the agreement, militated against a conclusion that the respondent was at any point acting as agent for the joint venturers: at [74]). 26. Jones v Bouffier (1911) 12 CLR 579 at 611; BC1190102

per Isaacs J.

27. Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Company of Australia Ltd (1931) 46 CLR 41 at 50; BC3200006

per Dixon J; Stiassny v North Shore City Council [2008] 1 NZLR 825 at

[32] per Harrison J (affd Stiassny v North Shore City Council [2009] 1 NZLR 342; [2008] NZCA 522 at [24] William Young P).

per

28. NT Power Generation Pty Ltd v Trevor (2000) 23 WAR 482; [2000] WASC 254; BC200006331 at [28] per Ipp J. See also in Tonto Home Loans Australia Pty Ltd v Tavares (2011) 15 BPR 29,699; [2011] NSWCA 389; BC201110342 at [177] per Allsop P, with whom Bathurst CJ and Campbell JA concurred (‘The necessary good faith implicit in a fiduciary character in the relationship reflects the character of identity or representation that the relationship essentially carries’).

Substance over form

1.5 Judges have adverted to the loose and slipshod use of the word ‘agent’,29. and have observed that ‘[t]he misuse of the word in common speech connotes an obscurity of the concept of agency’,30. one going so far as to opine that ‘[n]o word is more commonly and constantly abused than the word “agent” ’.31. Comments of this kind reveal that not all relationships branded as agency relationships exhibit the elements or characteristics of the legal concept of agency. More is required to establish an agency relationship than showing that one person did work at the request of another person for the latter's benefit,32. or that the relationship created attracts fiduciary duties.33. And even though agency involves a representative capacity, it cannot be assumed that identifying a person as a ‘representative’ in relevant documentation renders that person an agent for legal purposes.34. What follows from the foregoing is that it is possible for persons to suppose that their relationship is that of principal and agent, when in point of law it is not, and vice versa.35. The substance, not just the form, of the agreement or the exact circumstances of the relationship between the parties must be assessed.36. Even the use by the parties of the term ‘agent’ in their correspondence or in the formal documentation of their relationship is not necessarily conclusive, although ‘it is not an element which cannot be left out of consideration’.37. If the facts reveal a state of affairs different to an arrangement between principal and agent, this will not be altered simply because the language of agency has been used in a loose manner.38. To this end, judges have cautioned that ‘there is no magic in the word “agency”’,39. and that

Page 8 ‘[y]ou cannot make a man an agent by calling him an agent when he is not in law an agent’.40. This reflects the more general notion that parties cannot ‘by the mere device of labeling … confer a particular legal character on a relationship that it does not possess’.41. Yet where it is unclear whether or not an agency relationship has been created, the fact that the parties have, in their agreement, identified one another as principal and agent may prove conclusive. In such a case, ‘[t]he agreement itself then becomes the best material from which to gather the true relationship between them’.42.

29. See, for example, Kennedy v De Trafford [1897] AC 180 CLR 579 at 611; BC1190102 39 FCR 446 at 448; BC9203861

at 188 per Lord Herschell; Jones v Bouffier (1911) 12

per Isaacs J; Fliway-AFA International Pty Ltd v Australian Trade Commission (1992) per Wilcox J.

30. Clayton Robard Management Ltd v Siu (1988) 6 ACLC 57 at 59; Davis (2000) 204 CLR 333; [2000] HCA 52;

BC8701056

BC200005826 at [227]

per Kirby P. See also Scott v

per Gummow J (‘There is considerable

Page 7 of 11 Legal Concept of ‘Agent’ terminological confusion in this area’); Tonto Home Loans Australia Pty Ltd v Tavares (2011) 15 BPR 29,699; [2011]NSWCA 389; BC201110342 at [170] per Allsop P, with whom Bathurst CJ and Campbell JA concurred (‘The word agency is one apt to cause difficulty, in significant part, because of its broad usage in business’ and that ‘[i]t is a common business expression with a potentially wide and varying meaning’). 31. Kennedy v De Trafford [1897] AC 180

at 188

per Lord Herschell.

32. Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 at 48; BC3200006

per Dixon J; Tonto Home Loans Australia Pty Ltd v Tavares (2011) 15 BPR 29,699;

[2011] NSWCA 389; BC201110342 at [194] per Allsop P, with whom Bathurst CJ and Campbell JA concurred (‘Agency is to be determined by an analysis of the consensual legal relations between the parties, it is not merely a conclusion drawn from the performance by A of a function important, even necessary, to the operation or functioning of the business enterprise of P in question’). 33. See, for example, Guerin v The Queen (1984) 13 DLR (4th) 321 (where the Supreme Court of Canada declined to find an agency relationship between the Crown and indigenous persons but held that the relationship in question gave rise to fiduciary duties: at 342–3 per Dickson J). 34. See, for example, F & C Alternative Investments (Holdings) Ltd v Barthelemy (No 2) [2012] Ch 613 ; [2011]EWHC 2807 (where Sales J rejected the argument that the three ‘representatives’ of a corporate member of a limited liability partnership were, by virtue of their appointment, the agents of the corporate member when acting in their capacity as board members of the partnership: at [205]). 35. Ex parte White (1871) 24 LT 45 at 48 per Mellish LJ (affd Towle v White (1873) 29 LT 78 36. Jones v Bouffier (1911) 12 CLR 579 at 611; BC1190102

).

per Isaacs J (‘It is the substance and not the name that is

to be regarded’); Custom Credit Corporation Ltd v Griffith-Jury Co Pty Ltd [1965] WAR 77 at 78 Hutt City v Attorney-General [1965] NZLR 65 at 71 Board of Governors [1991] 3 NZLR 304 at 306

per Virtue J; Lower

per North P; L C Fowler & Sons Ltd v St Stephens College

per Thomas J; South Sydney District Rugby League Football Club

Ltd v News Ltd (2000) 177 ALR 611; [2000] FCA 1541; BC200006604 at [134], [135] per Finn J (affd on a different point: News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 215 CLR 563; [2003] HCA 45; BC200304465

).

37. Re Watson & Co [1904] 2 KB 753 78 at 79

at 758

per Vaughan Williams LJ. See also Towle v White (1873) 29 LT

per Selborne LC.

38. Towle v White (1873) 29 LT 78 at 79 Vaughan Williams LJ.

per Selborne LC; Re Watson & Co [1904] 2 KB 753

39. Ex parte White (1871) 24 LT 45 at 46 per James LJ (affd Towle v White (1873) 29 LT 78 40. Fraser-Ramsay (New Zealand) (Ltd) v De Renzyy (1912) 32 NZLR 553 at 565

at 758

per

).

per Williams J. See also at 567 per

Denniston J; Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385 at 389

(PC).

41. South Sydney District Rugby League Football Club Ltd v News Ltd (2000) 177 ALR 611; [2000]FCA 1541; BC200006604 at [134]

per Finn J (affd on a different point: News Ltd v South Sydney District Rugby League

Football Club Ltd (2003) 215 CLR 563; [2003] HCA 45; BC200304465 42. Massey v Crown Life Insurance Co [1978] 2 All ER 576 at 580

). per Lord Denning MR, cited with approval in

Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385 at 389

(PC). See also NMFM Property Pty Ltd v

Citibank Ltd (No 10) (2000) 107 FCR 270; [2000] FCA 1558; BC200006827 at [629] per Lindgren J (‘While it is the law, not the parties, that ultimately determines whether their relationship falls within a certain legal category, this does not mean that the parties' express agreement and their use or non-use of agency terminology are irrelevant’).

1.6 At the same time, the use of language other than language of agency will not prevent the recognition of an agency relationship if the court ascertains that this best reflects the parties' intention in the circumstances. Likewise, an

Page 8 of 11 Legal Concept of ‘Agent’ express stipulation by the parties that their arrangement is not to be construed as an agency, though a weighty consideration in the absence of evidence that the label is a sham,43. is not necessarily determinative.44. Parties cannot, to this end, avoid what is in substance an agency relationship by declaring in their contractual dealings that it is not (intended to be) an agency relationship. The point is illustrated in the judgment of Finn J in South Sydney District Rugby League Football Club Ltd v News Ltd.45. There the second respondent (‘NRLI’) was a subsidiary of the first respondent (‘News’), and was in partnership with the third respondent (‘NRL’) in forming the ‘NRL Partnership’. Clause 2.2 of the relevant services contract read: NRL will act solely as an independent contractor. Nothing in this Agreement will constitute, or be construed to be or create, the relationship of employer and employee, principal and agent, trustee and beneficiary, joint venturers or partnership between the Partners and NRL.

As to whether NRL acted as agent for the NRL Partnership, Finn J saw the relationship as ‘redolent of agency’,46. finding that ‘it is difficult to conceive of a relationship of purportedly independent parties that involves so great a degree of dominance by one and subservience by

Page 9 the other’.47. His Honour was heavily influenced by the power of direction, and the considerable level of autonomy, the services agreement conferred on NRL, which placed NRL in a position more akin to a principal than an agent.48. Though accepting that proper weight should be given to the denial of agency contained in cl 2.2, Finn J held that ‘[a] genuine statement of intention it may have been; an effective statement it was not’.49.

43. Tonto Home Loans Australia Pty Ltd v Tavares (2011) 15 BPR 29,699; [2011] NSWCA 389; BC201110342 at [182] per Allsop P, with whom Bathurst CJ and Campbell JA concurred.See, for example, Stiassny v North Shore City Council [2008] 1 NZLR 825 at [39]

per Harrison J (affd Stiassny v North Shore City Council [2009] 1 NZLR 342;

[2008] NZCA 522 ); A v B1 (No 2) (2012) 271 FLR 122; [2012] WASC 383 at [249] ,[250] per Edelman J; Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd (2013) 296 ALR 465; [2013] FCAFC 29; BC201301037 (where the court gave effect to an express disclaimer that the parties — being joint venturers for the purposes of exploring a mining lease — would be neither partners nor agents for each other during the initial exploration period, in the absence of evidence to suggest that the disclaimer was a sham, coupled with various other provisions in the joint venture agreement consistent with such an outcome: at [55]–[63]). 44. Garnac Grain Co Inc v H M F Faure & Fairclough Ltd [1968] AC 1130

at 1137

per Lord Pearson; Atlas

Maritime Co SA v Avalon Maritime Ltd (The ‘Coral Rose’) (No 1) [1991] 4 All ER 769 at 774–5 v St Bees Island Pty Ltd (1995) 56 FCR 303 at 314; BC9507598

per Neill LJ; Colbron

per Lindgren J; ACN 007 528 207 Pty Ltd (in liq) v

Bird Cameron (2005) 91 SASR 570; [2005] SASC 204; BC200503824 at [105]

per Besanko J; Michalopoulos v

Perpetual Trustees Victoria Ltd [2010] NSWSC 1450; BC201009718 at [135]

per White J; Perpetual Trustees

Australia Ltd v Schmidt [2010] VSC 67; BC201002712 at [148] Ltd [2013] VSC 327; BC201310316 at [124] [126]

per J Forrest J; Texxcon Pty Ltd v Austexx Corp Pty

per Davies J.

45. (2000) 177 ALR 611; [2000] FCA 1541; BC200006604 . This ruling was affirmed by the High Court on a different point: News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 215 CLR 563; [2003] HCA 45; BC200304465

.

46. South Sydney District Rugby League Football Club Ltd v News Ltd (2000) 177 ALR 611; [2000]FCA 1541; BC200006604 at [147]

.

47. South Sydney District Rugby League Football Club Ltd v News Ltd (2000) 177 ALR 611; [2000]FCA 1541; BC200006604 at [155]

.

48. South Sydney District Rugby League Football Club Ltd v News Ltd (2000) 177 ALR 611; [2000]FCA 1541; BC200006604 at [155], [156]

.

Page 9 of 11 Legal Concept of ‘Agent’ 49. South Sydney District Rugby League Football Club Ltd v News Ltd (2000) 177 ALR 611; [2000]FCA 1541; BC200006604 at [161]

.

Meaning in legislation

1.7 If the term ‘agent’ is defined in legislation, that definition operates to the exclusion of its legal definition. If the term ‘agent’ is used but not defined in legislation, its meaning is determined by the purpose of the Act and the context in which reference to the term is made. The technical legal meaning of ‘agent’ is appropriate as a starting point,50. but the wording, or the object or context, of the legislation can justify a broader or narrower construction of the term than that applicable at law. In Kench v Adams,51. for example, statute prohibited the sale of adulterated milk by dairymen or their agents. The defendant, a dairyman, was charged with breaching this prohibition by appointing an agent to make the sale, who then employed a third party who actually made the sale. The defendant argued that a sale had not been effected by his agent. Pring J held that, given the object of the statutory prohibition, the word ‘agent’ should receive a liberal construction to include any person who sells goods of the defendant when the money generated by the sale goes into the defendant's pockets. The concept of agency as understood at law may be inconsistent with the way in which statute has utilised the term. For instance, in Owners — Strata Plan No 53441 v Walter Construction Group Ltd52. statute stipulated that the interest of a body corporate in common property vested in it ‘shall be held … as agent’ for the proprietor(s) of the lots the subject of the strata scheme concerned.53. Another provision in the statute referred to the ‘beneficial interest’ of a proprietor of a lot ‘held by the body corporate as agent for that proprietor’ as capable of being severed from, or dealt with except in conjunction with, the lot.54. Spigelman CJ, with whom Ipp and McColl JJA concurred, held that here the word ‘agent’ was not used in its technical legal sense. What led his Honour to so conclude was the tension between the use of the words ‘agent’ and ‘beneficial interest’, noting that the relationship created by the statute — in vesting legal ownership of common property in the body corporate and equitable ownership in lot owners — was one better described in terms of trustee and beneficiary than of agent and principal.55. To characterise the statutory role of a body corporate solely in terms of agency at common law was therefore inappropriate in determining standing to sue.

50. Striplin v United States, 100 Fed Cl 493 at 498 (Ct Fed Cl 2011); A v B1 (No 2) (2012) 271 FLR 122; [2012] WASC 383 at [286]

per Edelman J.

51. (1906) 23 WN (NSW) 48. 52. (2004) 62 NSWLR 169; [2004] NSWCA 429; BC200408103

.

53. Pursuant to Strata Schemes (Freehold Development) Act 1973 (NSW) s 20. 54. Pursuant to Strata Schemes (Freehold Development) Act 1973 (NSW) s 24(2). 55. Owners — Strata Plan No 53441 v Walter Construction Group Ltd (2004) 62 NSWLR 169; [2004] NSWCA 429; BC200408103 at [43], [44]

, approving the remarks of Gzell J in Lin v Owners — Strata Plan No 5 0276 (2004) 11

BPR 21,643; [2004] NSWSC 88; BC200400962 at [7], [8]

. See also Carre v Owners Corporation — Strata Plan

53020 (2003) 58 NSWLR 302; [2003] NSWSC 397; BC200302275 at [28], [29] between agency and trust see 2.12, 2.13.

per Barrett J. As to the distinction

1.8 Statute may affect the incidents of an agency relationship, commonly by imposing upon the agent specific obligations beyond those applicable at general law.56. Although no

Page 10 of 11 Legal Concept of ‘Agent’

Page 10 legislation purports to govern all agents, particular types of agents are regulated by statute. These include many who meet the general law characterisation of ‘agents’, such as real estate agents,57. insurance brokers58. and stockbrokers.59. Statute also regulates and affects agency relationships arising as part of a broader legal relationship, such as that between lawyer and client,60. company and director,61. and between partners.62. There are occasions, moreover, where statute establishes a regulatory scheme applicable to specific types of ‘agents’ who are not necessarily agents at law; for instance, employment agents,63. introduction agents64. and security agents.65.

56. See 10.27–10.30. 57. See Agents Act 2003 (ACT); Property, Stock and Business Agents Act 2002 (NSW); Agents Licensing Act 1979 (NT); Property Agents and Motor Dealers Act 2000 (Qld); Land Agents Act 1994 (SA); Property Agents and Land Transactions Act 2005 (Tas); Estate Agents Act 1980 (Vic); Real Estate and Business Agents Act 1978 (WA). 58. See Corporations Act 2001 (Cth) Ch 7. 59. See Corporations Act 2001 (Cth) Ch 7. 60. See Legal Profession Act 2006 (ACT); Legal Profession Act 2004 (NSW); Legal Profession Act 2006 (NT); Legal Profession Act 2007 (Qld); Legal Practitioners Act 1981 (SA); Legal Profession Act 2007 (Tas); Legal Profession Act 2004 (Vic); Legal Profession Act 2008 (WA). 61. Namely the Corporations Act 2001 (Cth). 62. Partnership Act 1963 (ACT); Partnership Act 1892 (NSW); Partnership Act 1997 (NT); Partnership Act 1891 (Qld); Partnership Act 1891 (SA); Partnership Act 1891 (Tas); Partnership Act 1958 (Vic); Partnership Act 1895 (WA). 63. See, for example, Employment Agents Act 1976 (WA); Fitchett Brown and Associates Pty Ltd v Stewart-Day [1984] 2 NSWLR 361 at 368 per Watson J (IRC) (who held that the statutory use of the term ‘private employment agent’ was, in view of the purpose of the statute, not to be confined to the legal notion of agency because it involved an ‘agent’ who performed functions for another ‘without necessarily acting as an intermediary between a principal and a third party … whether or not there is any authority to establish some legal relationship’). 64. See, for example, Introduction Agents Act 2001 (Qld). 65. See, for example, Security and Investigations Agents Act 2002 (Tas).

Fiduciary duties of agents

1.9 The very nature of an agency relationship attracts fiduciary duties, which coexist with contractual and tortious duties imposed on agents by the common law.66. Fiduciary duties are two-fold: the duty to avoid a conflict between an agent's own interests, or those of another principal, and the duty owed to the principal; and the duty to avoid profiting from the position as agent.67. These duties can be modified by the consent or acquiescence of the principal. An agent's ability to affect a principal's legal relations with third parties under traditional concepts of agency is what attracted equity's intervention to protect the principal from the agent's abuse of authority. Yet even in scenarios where an agent lacks authority to contract on the principal's behalf or otherwise affect the latter's legal position with third parties, a typical example being a commission agent,68. courts nonetheless impose fiduciary duties;69. there may, though, be scope to argue that fiduciary duties could be relaxed in that context.70.

66. As to contractual and tortious duties see 10.1–10.5, Ch 11. 67. See 10.6–10.16. 68. As to commission agents see 1.17–1.22. 69. See, for example, in the context of estate agents, Gonsalves v Debreczeni (1998) 9 BPR 16,689 at 16,696–7; BC9806554

per Young J.

Page 11 of 11 Legal Concept of ‘Agent’ 70. See, for example, Kelly v Cooper [1993] AC 205

End of Document

, discussed at 12.53.

Onus of Proving Relationship One of Agency Law of Agency 3ed 2013 (book)

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Onus of Proving Relationship One of Agency Please click on the link below to download the entire chapter.

1.10 The party who alleges the existence of an agency relationship bears the burden of proving so, and moreover of establishing whether or not the agent acted within the scope of

Page 11 his or her actual (or ostensible) authority.71. More than an application of the general rule that he or she who asserts must prove, it also reflects business common sense. Were business persons bound by contracts merely upon evidence adduced that a person had acted by their authority, this would imperil their commercial standing. For this reason judges have required the rigid observance of the onus of proof requirement.72. The courts' concern in this regard was captured by Lord Cranworth in Pole v Leask, who observed the following:73. [T]he burden of proof is on the person dealing with any one as an agent, through whom he seeks to charge another as principal. He must show that the agency did exist, and that the agent had the authority he assumed to exercise, or otherwise that the principal is estopped from disputing it. Unless this principle is strictly acted on, great injustice may be the consequence; for any one dealing with a person assuming to act as agent for another can always save himself from loss or difficulty by applying to the alleged principal to learn whether the agency does exist, and to what extent. The alleged principal has no similar mode of protecting his interests; he may be ignorant of the fact that any one is assuming to act for him, or that persons are proposing to deal with another under the notion that that other is his agent. It is therefore important to recollect constantly where the burden of proof lies.

71. McLaughlin v Daily Telegraph Newspaper Co Ltd (1904) 1 CLR 243 at 276 SR (NSW) 500 at 503

per Griffith CJ; Baker v Taylor (1906) 6

per Street J; Cadd v Cadd (1909) 9 CLR 171 at 187; BC0900030

McCarthy (1916) 22 CLR 296 at 303; BC1600025

per Isaacs J; Hoare v

per Griffith CJ; Clayton Robard Management Ltd v Siu (1988) 6

ACLC 57 at 59; BC8701056 per Kirby P. As to actual authority see Ch 7 (express authority), Ch 8 (implied authority). As to onus of proof in the context of ostensible authority see 20.7. 72. Robinson v Tyson (1888) 9 LR (NSW) L 297 at 300 per Windeyer J, at 311 per Innes J. 73. (1863) 8 LT 645 Gillard J.

End of Document

at 648–9, cited with approval in Rowe v B & R Nominees Pty Ltd [1964] VR 477 at 481

per

Classification of Agents Law of Agency 3ed 2013 (book)

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Classification of Agents Please click on the link below to download the entire chapter.

Universal, general and special agents

1.11 As a corollary of the breadth of the legal concept of agency, there are many different types of agents. Agents can be classified according to the scope of authority conferred on them by their principal. An agent may, for instance, be authorised to do anything that the principal has the power to do and to bind the principal in this way,74. as in the case of a general power of attorney.75. Such agents can be termed ‘universal agents’. Other agents, termed ‘general agents’, may represent the principal only in matters pertaining to a particular profession, trade or business. For example, the managing director of a company is a general agent to act for the company in carrying on the company's business.76. The same can be said of a partner in a partnership.77. An agent is a ‘special agent’ where he or she is authorised only to do a specified act or class of acts on behalf of the principal,78. such as a real estate agent,79. who is ordinarily authorised to engineer the one transaction. Yet to distinguish between universal, general and special agents does not of itself suffice to determine the actual scope of the agent's authority, which in each case depends upon the express or implied terms of the agency agreement.80. Issues of degree predominate to this end, meaning that ‘[t]he labels matter less than the underlying circumstances that warrant their

Page 12 application’.81. For this reason, more than one commentator has queried the utility of this classification in the modern law.82. The scope of an agent's authority is not circumscribed merely by the types of transactions for which he or she may act for the principal; it also depends upon the purpose for which the agent was employed, and to this end reflects the variety of meanings that agency connotes. For instance, some agents may be engaged solely to perform a service for the principal, and not to bind the principal contractually, but may create legal liability in the principal for acts within the scope of their authority. Commission agents engaged to find a purchaser for the property of the principal, the (mis)representations of whom the principal may be liable for,83. illustrate the point.

74. Blackburn, Low & Co v Vigors (1887) 12 App Cas 531 at 537–8 per Lord Halsbury LC (‘Some agents so far represent the principal that in all respects their acts and intentions and knowledge may truly be said to be the acts, intentions, and knowledge of the principal’). 75. See 1.30. 76. See, for example, Harmond Properties Ltd v Gajdzis [1968] 3 All ER 263 . As to the agency of company directors see 1.41, 1.42. See also Excess Life Assurance Co Ltd v Firemen's Insurance Co of Newark New Jersey [1982] 2 Lloyd's Rep 599 (as to ‘general agents’ in relation to an insurance policy). 77. As to partners as agents see 1.48. 78. Blackburn, Low & Co v Vigors (1887) 12 App Cas 531

at 538

per Lord Halsbury LC.

Page 2 of 13 Classification of Agents 79. As to real estate agents as agents see 1.27, 1.28. 80. As to the scope of agents' authority see Ch 7 (express authority), Ch 8 (implied authority), 20.29–20.31 (ostensible authority). 81. Restatement (3d) §2.01, Comment d. 82. Bowstead, p 37; P Mechem, Outlines of Agency, 4th ed, Callaghan, Chicago, 1952, p 46 (‘The most useful thing that can be said about a special agent is that he is one who falls outside the ambit of any useful generalisation’). 83. See 22.19–22.22.

Del credere agents84.

84. For an historical account of the history of del credere agency see R S T Chorley, ‘Del Credere’ (1929) 45 LQR 221, (1930) 46 LQR 11.

Definition

1.12 Where an agent is described as a del credere agent, or as an agent who has accepted a commission del credere, it means that the agent has agreed to indemnify85. the principal for any loss arising from the failure of persons with whom the agent contracts on behalf of the principal to perform.86. A leading definition of a del credere agent is that of Mellish LJ in Ex parte White:87. [A] del credere agent is an agent like any other agent who is to sell according to the instructions of his principal, and to make such contracts as he is authorised to make for his principal; and he is distinguished from other agents simply in this, that he guarantees that those persons to whom he sells shall perform the contracts which he makes with them, and, therefore, if he sells at a price at which he is ordered to sell by the principal, and upon the credit which he is ordered to give by the principal, then no doubt he guarantees that the customer shall pay him at that time, and he is bound like any other agent, as soon as he receives the money, to hand it over to the principal.

85. This is notwithstanding that ‘del credere’ is an Italian phrase equivalent to the English words ‘guaranty’ or ‘warranty’. See further 1.14. 86. For an example of a del credere agency see Campbell v Kitchen & Sons Ltd and Brisbane Soap Co Ltd (1910) 12 CLR 515; BC1000001

.

87. (1871) 24 LT 45 at 48 (affd Towle v White (1873) 29 LT 78

) (emphasis supplied).

Proof of existence

1.13 For a contract of agency to be construed as creating a del credere agency, it need not actually use the phrase del credere. The question is one of construction of the contract to ascertain whether the parties intended to create an agency of that character — substance must prevail over form.88. Moreover, a del credere agency can be implied from the conduct of the parties.89. This may be so where, say, the agent charges additional commission for the risk

Page 3 of 13 Classification of Agents he or she bears as a result of being liable to indemnify the principal. Anthoness v Melbourne Malting and Brewing Co90. provides such an example. The defendant company, on discovering that one of its employees (the plaintiff) had advanced loans to the company's clients for the purchase of the defendant's product, informed the plaintiff that he must refrain from doing so unless he became personally responsible to the defendant for payment for the product so advanced. In return for the plaintiff agreeing to this, the defendant gave him a commission calculated as a

Page 13 percentage of the goods supplied. The Full Court of the Victorian Supreme Court held that this constituted a del credere agency.91. If, however, the arrangement is such that the consignee is at liberty to sell at any price and receive payment at any time he or she likes, but is bound to pay the consignor for the goods at a fixed price and a fixed time in the event of a sale, the relationship between the parties is not that of principal and agent, but of vendor and purchaser.92. The consignee makes on his or her own account a contract of purchase with the consignor and then resells. The undertaking to pay a fixed price for the goods at a fixed time does not create a del credere agency because there is no guaranteeing of the purchaser's performance. In that a del credere agent undertakes the risk of non-payment that would otherwise lie with the principal, such an agent will ordinarily request a higher commission to compensate for that risk.93. For this same reason, a del credere agent has a vested interest both in selecting customers who are creditworthy and in ensuring that he or she has financial resources sufficient to meet any claim by the principal arising from a customer's failure to pay.

88. Nouvelle Huileries Anversoises SA v H C Mann and Co (1924) 40 TLR 804 at 805 per Bailhache J (who held that merely because a person is described as a del credere agent in a contract does not make him or her such an agent). 89. Shaw v Woodcock (1827) 7 B & C 73; 108 ER 652. 90. (1888) 14 VLR 916

.

91. Anthoness v Melbourne Malting and Brewing Co (1888) 14 VLR 916 at 930–2

.

92. Ex parte White (1871) 24 LT 45 at 48 per Mellish LJ (affd Towle v White (1873) 29 LT 78

). See further 2.2–2.9.

93. See, for example, Anthoness v Melbourne Malting and Brewing Co (1888) 14 VLR 916 Goddard [1937] 1 KB 92

at 105

; Churchill& Sim v

per Scott LJ.As to the remuneration of agents generally see Chs 15–17.

Contract one of indemnity not guarantee

1.14 Although it has been said that a del credere agent essentially guarantees the solvency of the person with whom the agent contracts on the principal's behalf,94. in law a contract of del credere agency is not a contract of guarantee but one of indemnity. The distinction between a guarantee and an indemnity is that, in the former case, the guarantor is entirely unconnected with the transaction between the principal and the other party except by means of his or her promise to pay the loss. Conversely, where a person is not unconnected with the transaction in the sense of having an interest in it, either by being the person who is to negotiate it or in some other way, but is to derive some benefit from it, the contract is one of indemnity.95. So whether a contract is one of guarantee or one of indemnity is determined as a question of construction of its terms. The distinction is an important one practically. In the case of a contract of guarantee, a contracting party's ability to proceed against the guarantor depends on default by the principal debtor. No such requirement applies to contracts of indemnity, because the promise to indemnify is a personal undertaking the liability for which is independent of default by the debtor.96. Moreover, statute in several jurisdictions requires that a promise to answer for the debt of another (namely a guarantee) be effected or evidenced in writing in order to be enforceable.97. Contracts of

Page 4 of 13 Classification of Agents indemnity are subject to no such formalities as a condition of their enforceability. Hence, there is no legal requirement that a del credere agency be constituted in writing, as explained by Cockburn CJ in Fitzgerald v Dressler as follows:98. [I]f there be something more than a mere undertaking to pay the debt of another, as, where the property in consideration of the giving up of which the party enters into the undertaking is in

Page 14 point of fact his own, or is property in which he has some interest, the case is not within the provision of the [statutory formality requirements], which was intended to apply to the case of an undertaking to answer for the debt, default, or miscarriage of another, where the person making the promise has himself no interest in the property which is the subject of the undertaking.

It has been observed that a contract to employ a del credere agent is not within the terms of the statutory writing requirement because its main object is to regulate the terms of the agent's employment, even though the agent may have to indemnify the principal against losses.99. Yet this statement is misleading, for it obscures the real reason why writing requirements do not apply to del credere agencies: that such agencies are in the nature of an indemnity. Any inquiry into the main object should be in relation to the terms of the agency, not the terms of the statute imposing the formality requirements.

94. Morris v Cleasby (1816) 4 M & S 566 at 574; 105 ER 943 at 947 per Lord Ellenborough CJ; Rusholme and Bolton and Roberts Hadfield Ltd v S G Read & Co (London) Ltd [1955] 1 All ER 180 at 183 per Pearce J. 95. Couturier v Hastie (1852) 8 Exch 40 at 55; 155 ER 1250 at 1257 at 288

per Parke B; Sutton& Co v Grey [1894] 1 QB 285

per Lord Esher MR.

96. On the difference between guarantee and indemnity see further J O'Donovan and J C Phillips, The Modern Contract of Guarantee, 2nd English ed, Sweet & Maxwell, London, 2010, pp 40–7. 97. Law of Property Act 2000 (NT) s 58; Property Law Act 1974 (Qld) s 56; Mercantile Law Act 1935 (Tas) s 6; Instruments Act 1958 (Vic) s 126; WA: Statute of Frauds (Imp) s 4 (as affected by the Law Reform (Statute of Frauds) Act 1962 (WA) s 2). 98. (1859) 7 CBNS 374 at 392–3; 141 ER 861 at 868–9 1250 at 1257

. See also Couturier v Hastie (1852) 8 Exch 40 at 55; 155 ER

per Parke B; Anthoness v Melbourne Malting and Brewing Co (1888) 14 VLR 916 at 930–1

Higinbotham CJ (FC); Sutton & Co v Grey [1894] 1 QB 285 99. Sutton & Co v Grey [1894] 1 QB 285

at 291

at 288

per

per Lord Esher MR, at 291 per Kay LJ.

per Kay LJ.

Liability of agent

1.15 In Grove v Dubois100. Lord Mansfield CJ described the nature of a del credere agency contract as ‘an absolute engagement to the principal from the [agent] and makes him liable in the first instance’, adding that ‘[t]here is no occasion for the principal to communicate to the [other contracting party], though the law allows the principal for his benefit to resort to him as a collateral security’. According to his Lordship, ‘the [agent] is liable at all events’.Judges have since gone to some length to distance themselves from Lord Mansfield's statements. For instance, Buckley LJ in Thomas Gabriel & Sons v Churchill & Sim catalogued the problematic ramifications of the Grove v Dubois approach as follows:101.

Page 5 of 13 Classification of Agents

That was language that affirmed that the del credere agent was under an absolute engagement in respect of which he was liable in the first instance, that he was liable … for the performance of the contract, an expression which is found in some of the later cases, that his liability was not confined to a liability to make good the event of insolvency of the buyer or the impossibility of suing the buyer by reason of his being abroad or anything of that kind, but that he was liable as a principal in the matter. From that it would flow, I suppose, that he would stand in the position of a sub-seller to the ultimate buyer and would be entitled to retain any profit made upon the sub-sale. That of course is inconsistent with the general idea as regards the engagements subsisting between seller and del credere agent and buyer.

Moreover, were Grove v Dubois correct, the principal could sue the del credere agent not merely for the price of the goods but for the refusal of the ultimate purchaser to accept, an outcome also unsupported by authority.102. It is thus unsurprising to discover that within 30 years of Grove v Dubois Lord Ellenborough declined to accede to Lord Mansfield's propositions ‘thus generally laid down without restriction or qualification’, because the doctrine contained in them appeared to reverse the relative situations of principal and agent, tending to introduce uncertainty and confusion into the law on this subject.103. In a subsequent case Lord Ellenborough observed:104. I cannot think that a commission del credere is to have an effect attributed to it beyond that which regards the benefit of the principal who gives the commission. The commission imports that if the vendee does not pay the factor will; it is a guarantee from the factor to the principal against any mischief to arise from the vendee's insolvency. But it varies not an iota the rights subsisting between vendor and vendee. A somewhat different doctrine seems to have originated with Grove v Dubois. A kind of magic effect was there given to a commission del credere changing the relative position of the owner and buyer …

Accordingly, the correct view is that an agent with a del credere commission is liable to the principal if the buyer fails to pay or is incapable of paying. The agent is responsible only by virtue of the relation that arises between himself or herself and the principal. He or she is not

Page 15 primarily the debtor, and so is not responsible as a principal to the purchaser.105. To this end, the liability of a del credere agent has been described as a ‘contingent pecuniary liability’,106. that is, a pecuniary liability to make good in the event of the buyer defaulting in respect of a pecuniary liability. It is not a liability to perform the contract, and so a del credere agent cannot be said to guarantee, for instance, that the purchaser will take delivery of or accept the goods.107. For this reason, nor is a del credere agent exposed to an action to ascertain the sum due. He or she is not the person with whom the principal is entitled to litigate disputes arising out of the contract, pertaining, for example, to what money is due on the contract.108. In the case of a dispute, the amount due must be quantified by the principal by action against the purchaser prior to being entitled to an indemnity from the agent.109. The agent is subject to a contingent pecuniary liability in respect of a sum that, as between the principal and the purchaser, is an ascertained sum.110. This is, however, without prejudice to the principal's entitlement to sue the purchaser in his or her own name notwithstanding the del credere commission.

100.(1786) 1 Term Rep 112 at 115; 99 ER 1002 at 1004 101.[1914] 3 KB 1272

at 1277

.

.

102.Thomas Gabriel & Sons v Churchill & Sim [1914] 3 KB 1272

at 1282

per Phillimore LJ.

103.Morris v Cleasby (1816) 4 M & S 566 at 575; 105 ER 943 at 947. 104.Hornby v Lacy (1817) 6 M & S 166 at 171; 105 ER 1205 at 1207. 105.Thomas Gabriel & Sons v Churchill & Sim [1914] 3 KB 1272 Goddard [1937] 1 KB 92

at 101

per Lord Roche.

at 1282

per Phillimore LJ; Churchill & Sim v

Page 6 of 13 Classification of Agents 106.Thomas Gabriel & Sons v Churchill & Sim [1914] 3 KB 1272

at 1279

per Buckley LJ.

107.Thomas Gabriel & Sons v Churchill & Sim [1914] 3 KB 1272

at 1282

per Phillimore LJ.

108.Thomas Gabriel & Sons v Churchill & Sim [1914] 1 KB 449

at 455–6

per Pickford J (affd Thomas Gabriel &

Sons v Churchill & Sim [1914] 3 KB 1272 ); Rusholme and Bolton and Roberts Hadfield Ltd v S G Read & Co (London) Ltd [1955] 1 All ER 180 at 183 per Pearce J. 109.Rusholme and Bolton and Roberts Hadfield Ltd v S G Read & Co (London) Ltd [1955] 1 All ER 180 at 184 per Pearce J. 110.Thomas Gabriel & Sons v Churchill & Sim [1914] 1 KB 449

at 455–6

per Pickford J (affd Thomas Gabriel &

Sons v Churchill & Sim [1914] 3 KB 1272 at 1279 per Buckley LJ, at 1279–81 per Kennedy LJ); Rusholme and Bolton and Roberts Hadfield Ltd v S G Read & Co (London) Ltd [1955] 1 All ER 180 at 183 per Pearce J.

Liability of principal

1.16 The main benefit for a principal of contracting with a del credere agent is as a vehicle to minimise and spread the risk of a third party under a contract being unable to meet his or her financial commitments thereunder.This, as noted earlier, stems from the fact that a del credere agent, by definition, has agreed to indemnify the principal for loss stemming from a failure of third parties to perform. However, from the perspective of the performance of a contract with the third party effected through the del credere agent, the mere fact of del credere agency does not function to absolve the principal from personal liability to perform.111. Whether it is the agent only who is liable to perform, the principal only, or both the principal and agent, depends on the construction of the contract with the third party and any applicable usage.112. The existence of a del credere agency is concerned with the relationship between principal and agent — namely with intra-agency duties — not that between principal and the third party.

111.Toycorp Ltd (receivers and managers appointed) v Milton Bradley Australia Pty Ltd [1992] 2 VR 572

.

112.See 23.3–23.41.

Commission agents

1.17 A commission agent is appointed on commission terms, which amount to promises binding the principal to pay a sum of money upon the happening of a specified event that involves the rendering of a service by the agent.113. The agent's entitlement to commission is triggered by the said event. That commission agents do not contract on behalf of their employer does not oust their fiduciary duties, except in the face of contrary express terms of the agency or on grounds of contractual implication for business efficacy.114. A common example of a commission agent is a real estate agent.

Page 16 It cannot be assumed that merely because a person is described as an ‘agent’, or even as a ‘sole agent’,115. in this context that an agency relationship has been created. As noted earlier,116. whether or not an agency relationship has been created depends on its substance rather than its form. Outside of the relationship between commission agent and vendor, a (sole or exclusive) agency so described need not necessarily give rise to an agency, but may create merely a purchaser and vendor relationship under which the so-called agent purchases goods from the socalled principal and on-sells them to third parties.117. For the same reason, the payment of something that is called commission does not by itself mean that its payer is a principal and its receiver is an agent.118.

Page 7 of 13 Classification of Agents

113.Luxor (Eastbourne) Ltd v Cooper [1941] AC 108

at 124

114.For an example of the latter see Kelly v Cooper [1993] AC 205

per Lord Russell. , discussed at 12.53, 12.54.

115.As to sole agents see 1.21, 1.22. 116.See 1.5. 117.International Harvester Company of Australia Pty Ltd v Carrigan's Hazeldene Pastoral Company (1958) 100 CLR 644 at 652; BC5800260

(FC). See further 2.2–2.8.

118.Palandri Wines Ltd v O'Donnell [2002] WASC 123 (S); BC200207491 at [21] [2004] VSC 394; BC200406688 at [149]

per Bredmeyer M; Quek v Chan

per Ashley J.

Form of commission agency

1.18 The relationship between a commission agent and his or her principal may take different forms. It may, for example, be that of master and servant where the agent agrees to perform stipulated services, for a stipulated period or in respect of a stipulated transaction, for a stipulated commission.119. The relationship may instead be one of principal and independent contractor, where the agent promises to endeavour to achieve a specified result and is to receive a commission if he or she does but is his or her own master as to how to go about it.120. The agency relationship between an insured and an insurance broker is an example of the type of agency envisaged here.121. Alternatively, in some circumstances judges have been minded to characterise the relationship as one of offeror and offeree, the principal offering to pay the agent a commission if he or she achieves a specified result, the agent promising neither to achieve nor to attempt that result.122. The estate agent–vendor relationship has been characterised in this fashion, the following extract from McArthur J's judgment in Taylor v Smith being typical of this view:123. Usually there is no contract at all. It is merely an authority, coupled with an offer to pay commission in the event of the agent performing certain conditions. When those conditions are performed — but not before — there is a contract between the parties. The performance of the conditions is the acceptance of the offer. The offer, coupled with the performance of the conditions, constitutes the contract.

119.Erikson v Carr (1945) 46 SR (NSW) 9 at 14

per Jordan CJ.

120.R v Walker (1858) Dears & B 600 at 601; 169 ER 1136 at 1136 per Bramwell B. 121.See 1.34. 122.Joynson v Hunt (1905) 93 LT 470

; Levy v Goldhill [1917] 2 Ch 297

; Luxor (Eastbourne) Ltd v Cooper [1941] AC

108 at 117–21 Romer.

per Viscount Simon LC, at 124–5 per Lord Russell, at 141 per Lord Wright, at 153 per Lord

123.[1926] VLR 100 at 110

(emphasis supplied). See also Webb v S A Worsted Mills Pty Ltd [1942] SASR 157 at 160

per Napier J (‘the common understanding of the engagement of a commission agent is that the principal offers — “in the event of your procuring a purchaser for my property I agree to pay you a commission” — and that the offer is accepted by the agent procuring a purchaser’).

Page 8 of 13 Classification of Agents

1.19 Yet to the extent that this suggests that an estate agent's retainer is not a contract at the time it is signed, it must be queried. To this end, it has been suggested that there is a contract but one of a unilateral nature, an approach that also serves to avoid what would otherwise be the difficulty in distinguishing in principle an unsolicited introduction from one made at the vendor's request (both of which could be construed as offers).124. Stephen J endorsed this approach in L J Hooker Ltd v W J Adams Estates Pty Ltd125. in characterising commission

Page 17 contracts as ‘unilateral contracts in which the agent qualifies for a reward by procuring for the intending vendor the sale of his property’. However, even the unilateral contract theory is not entirely satisfactory. Just because an estate agent is not contractually bound to sell the principal's property for the price and within the time frame specified in the agency agreement— and as such cannot be sued by the principal for failing to do so126. — does not mean that estate agents owe no duties of a contractual nature to their principal.127. Implied into every agency agreement are terms requiring the agent to act in accordance with the instructions contained in his or her authority, to act honestly and in good faith, to exercise proper or reasonable care in discharging his or her duties as agent, and to act for the benefit of his or her principal.128. An agent must, to this end, inform his or her principal of all matters material to the agency.129. This constitutes a positive contractual duty to act,130. which must logically precede the sale of the property. Hence, it is better to say that although an agent's contractual right to commission arises once the agent has performed the services prescribed in the agency agreement, this does not mean that no contractual duty precedes it.

124.J R Murdoch, ‘The Nature of Estate Agency’ (1975) 91 LQR 357 at 368 (and see more generally at 369–75). 125.(1977) 138 CLR 52 at 73; BC7700023

.

126.Luxor (Eastbourne) Ltd v Cooper [1941] AC 108 at 117 per Viscount Simon LC (who observed that although an estate agent is described as being ‘employed’ by the vendor, this is not ‘employed’ in the sense in which a person is employed to paint a picture or build a house, with liability to pay damages for delay or want of skill). 127.Cf Luxor (Eastbourne) Ltd v Cooper [1941] AC 108 at 124–5 per Lord Russell, who said: ‘[C]ontracts by which owners of property, desiring to dispose of it, are not (in default of specific provisions) contracts of employment in the ordinary meaning of those words. No obligation is imposed on the agent to do anything. The contracts are merely promises binding on the principal to pay a sum of money upon the happening of a specified event, which involves the rendering of some service by the agent. There is no real analogy between such contracts, and contracts of employment by which one party binds himself to do certain work, and the other binds himself to pay remuneration for the doing of it.’ That there is no such analogy, however, does not of itself deny the existence of a contract prior to the agent effecting the sale. As such, Lord Russell's observation that ‘[n]o obligation is imposed on the agent to do anything’ must be viewed in relative rather than absolute terms. 128.Samper v Hade (1889) 10 LR (NSW) L 270 at 273 per Darley CJ; Lysaght Bros & Co Ltd v Falk (1905) 2 CLR 421 at 439 per O'Connor J; Aaron Acceptance Corp v Adam (1987) 37 DLR (4th) 133 at 138 per Wallace JA (CA(BC)). On these duties see Ch 11. 129.See 11.7–11.19. 130.Although this has been explained on the basis of a collateral contract (see, for example, Bowstead, pp 178–9), there appears no reason why the term in question should not form part of the main contract.

Non-exclusive agency contracts

Page 9 of 13 Classification of Agents

1.20 When a principal puts his or her property into the hands of a commission agent for sale, unless specific terms to the contrary exist in the agency agreement, ‘the owner has the right to sell it himself or to sell it through another agent’.131. Pickford J explained the general principle in Brinson v Davies:132. If … the act was one which the defendant was entitled to do under the terms of the contract between the plaintiff and himself, then as the defendant has only done what he was entitled to do, he is not responsible for the fact that the contract between himself and the proposed purchaser found by the plaintiff has not been carried out … It seems to me unless some specific terms were made between the parties to that effect, the putting of a house for sale into the hands of an agent does not prevent the owner of the house from selling it himself or from selling it through another agent, and if he does that before the relationship of purchaser and vendor arises between himself and the plaintiff's nominee, then the plaintiff has not found a purchaser because the house has been already sold to someone to whom the owner had the right to sell it. To put it another way, there is an implied term that the owner of the house shall be at liberty to sell the house himself,

Page 18 and if his doing so prevents the agent from finding a purchaser the agent is not entitled to a commission, because the owner has only done that which he was entitled to do.

Although his Lordship justified this approach by reference to contractual implication, there is no need for implication. The express terms of the agency agreement govern the matter. Consistent with the notion that ‘a person is free to deal with his property as he chooses’,133. if the agency agreement in no way expressly envisages a restriction on the vendor's entitlement to sell, whether personally or via another agent, there is no need to imply a term to this effect. It has, rather, been agents who have sought to imply into agency agreements a term restricting principals from dealing with their property as they choose. The courts have refused to give effect to any such implication.134. Only express words to this end in the contract will suffice.135. For example, a ‘sole’ agency will prohibit the vendor from selling through another agent during the period of the agency,136. and a term entitling the agent to the sole (exclusive) right to sell will prohibit the vendor from selling without accounting to the agent for commission due under the agency agreement.137. Consistent with the notion that an owner of property should be free to deal with it, it is contrary to public policy — as a restraint of trade — to prohibit by way of an agency contract the principal from engaging another agent after the expiry of the agency. However, this does not prevent the contract from entitling the agent to commission for a sale effected after that expiry where he or she introduced the purchaser to the property and can be said to have been an effective cause of the subsequent sale.138.

131.Heffernan v Hansford (1936) 53 WN (NSW) 76 at 78 (NSW) 318 at 321 at 117

per Stephen J. See also Donowa v Webster (1929) 29 SR

per James J, at 323–4 per Halse Rogers J; Luxor (Eastbourne) Ltd v Cooper [1941] AC 108

per Viscount Simon LC.

132.(1911) 105 LT 134 at 135 , applied in Dainton v Chivers [1928] VLR 555 at 560–1 per Irvine CJ, at 561 per Macfarlan J. The latter case involved the sale by the principal personally before the agent was able to communicate to the principal that he had located a purchaser able and willing to purchase. It was held that there was no liability in the principal until the agent had communicated to him the fact that the agent had complied with the conditions of his authority. 133.Alpha Trading Ltd v Dunnshaw-Patten Ltd [1981] QB 290 (Eastbourne) Ltd v Cooper [1941] AC 108

at 143

at 304

per Lord Wright.

per Brandon LJ. See also Luxor

Page 10 of 13 Classification of Agents 134.Bentall, Horsley and Baldry v Vicary [1931] 1 KB 253 Patten Ltd [1981] QB 290

at 304

at 258

per McCardie J; Alpha Trading Ltd v Dunnshaw-

per Brandon LJ.

135.Bentall, Horsley and Baldry v Vicary [1931] 1 KB 253

at 258

, 261–2

per McCardie J.

136.See 1.21, 1.22. 137.Heffernan v Hansford (1936) 53 WN (NSW) 76 at 77 per Davidson J. See also Property, Stock and Business Agents Act 2002 (NSW) s 58(4) (definition of ‘exclusive agency agreement’); Property Agents and Motor Dealers Act 2000 (Qld) s 19 (definition of ‘exclusive agency’). 138.As to the concepts of introduction and effective cause see 15.39–15.42 and Ch 16 respectively.

‘Sole agents’

1.21 Commission agents may be appointed by their principal as ‘sole agents’. The use of this descriptor has been held to imply a negative covenant that the principal will not sell through any agent other than the sole agent.139. Marks J explained the reason why a principal may opt for a sole agency in Di Dio Nominees Pty Ltd v Brian Mark Real Estate Pty Ltd, in the context of an estate agent, as follows:140. The purpose of a sole agency agreement is to encourage an estate agent to focus his or her endeavours, including expenditure of time and money, on the sale of the property of the owner in consideration of the promise that the agent will not be deprived of commission in the event that the property is sold by someone else or that a sale results from the activity of others during that period. In effect, the contract is that the sole agent will be paid commission if during the selected period a sale eventuates from an act or acts or introduction by that agent or of others.

139.Cant v Miller (1913) 13 SR (NSW) 505 at 509 per AH Simpson CJ in Eq. The court will not, however, be willing to find a sole agency where the language creating the agency is ambiguous: see Cameron v Dunedin Real Estate Ltd [1968] NZLR 39 . In that case the terms of the agency ambiguously provided for the appointment of ‘sole agents/agents for the sale’ of property. Henry J held that it was impossible on those words and with a proper use of extrinsic circumstances to determine whether a sole agency was intended, and so held that the document should have effect as far as it could have effect. The document was accordingly held to create a simple (non-sole) agency: at 44. 140.[1992] 2 VR 732 at 740

. See also at 742 per Hedigan J.

1.22 The creation of a sole agency will not, except as expressly provided or stemming from necessary implication, prohibit the principal from selling; it only prohibits the principal

Page 19 from employing another agent to sell during the period of the sole agency.141. For example, in Heffernan v Hansford142. the defendant gave the plaintiff the ‘sole selling agency’ in relation to his property, but the defendant sold the property personally. Davidson J held that the agency agreement contained no prohibition on the defendant doing so, reasoning as follows:143. [W]hat the parties meant was that the plaintiff was to have the right to search for a purchaser, and that, during the period

Page 11 of 13 Classification of Agents which was specified, the defendant would not employ anybody else to do the same thing. In such circumstances, there is nothing said about the right which the defendant, as owner of the property, would naturally have to sell the property himself.

Had the parties intended to prohibit the defendant from selling personally, ‘nothing would have been easier than to insert the appropriate words’.144. The words used were: ‘I appoint you the sole agents for the sale’, not ‘I give you the sole right to sell’, words that mean a different thing. On the other hand, Davidson J found no material difference between ‘the appointment of a person as sole agent for the sale for a specific period, and his appointment as the sole selling agent for a specific period’.145. Yet it must be noted that the terms of a sole agency agreement may provide that the agent is entitled to commission on the sale even if it is effected by the vendor personally,146. thereby circumventing the foregoing.

141.Cant v Miller (1913) 13 SR (NSW) 505 at 509 per AH Simpson CJ in Eq. See also Property, Stock and Business Agents Act 2002 (NSW) s 58(4) (definition of ‘sole agency agreement’); Property Agents and Motor Dealers Act 2000 (Qld) s 19 (definition of ‘sole agency’). The New South Wales legislation prohibits an agent entering into an agency agreement with a person in respect of the sale or purchase of residential property or rural land by the person if: (a) the agreement provides for an entitlement to commission in respect of services to be provided at a time when the property or land is or is to be the subject of a sole agency agreement or exclusive agency agreement with another licensee for the provision of those services; and (b) the licensee knows or has reasonable cause to suspect that the person has entered into that sole agency agreement or exclusive agency agreement: s 58(1). It makes it an offence for an agent to solicit or encourage a person to enter into an agency agreement with the agent if the agent is prohibited from entering into the agreement by s 58(1): s 58(2). 142.(1936) 53 WN (NSW) 76

.

143.Heffernan v Hansford (1936) 53 WN (NSW) 76 at 77 . See also at 78 per Stephen J, who observed that the contract only limited the right of the owner with regard to the employment of other selling agents, and so in selling the property himself ‘the owner has dealt with the property in a way in which he is entitled to, as such owner’, and so did not repudiate or breach the contract, even though it prevented the agent obtaining any benefit thereunder. 144.Heffernan v Hansford (1936) 53 WN (NSW) 76 at 77 Vicary [1931] 1 KB 253

at 258

per Davidson J, citing Bentall, Horsley and Baldry v

per McCardie J.

145.Heffernan v Hansford (1936) 53 WN (NSW) 76 at 77

.

146.For example: ‘The agent shall be entitled to a commission of [X]% … if during the Exclusive Agency period the property is sold either: (a) by the Agent; (b) by any other Agent; or (c) by the Principal’. This was the clause in the agency agreement in Colliers Jardine (NSW) Pty Ltd v Balog Investments Pty Ltd [1996] ANZ ConvR 527; BC9400243

.

Mercantile agents Factors

1.23 There are two classes of mercantile agents: factors and brokers. At common law147. a factor is an agent who is entrusted with the possession of goods for the purpose of sale.148. The critical point is that a factor must have possession and thus the control of the principal's goods. From the relation of principal and factor, the latter derives an authority to sell at such times and for such price as he or she thinks best for the principal, except where the goods are received

Page 20 subject to any special instructions that limit the factor's discretion, which instructions the factor must obey.149. In the usual course of business a factor sells in his or her own name.150. As explained by Brett LJ in Ex parte

Page 12 of 13 Classification of Agents Dixon,151. ‘the very fact of entrusting your goods to a man as a factor, with right to sell them, is prima facie authority for you to him to sell in his own name’. Hence, that a factor, contrary to the instructions of the principal, sells in his or her own name in no way affects his or her status as a factor.152. Nor is he or she any less a factor for selling in the principal's name following instructions to that effect,153. or for being bound by the principal to sell at a fixed price;154. it is immaterial, it has been said, ‘what are the restrictions that are imposed on the factor by the principal with regard to the disposal’.155.

147.As to factors under statute see 21.20–21.36. 148.Stevens v Biller (1883) 25 Ch D 31 at 35 per Chitty J, at 37 per Cotton LJ. See also Whitfield v Brand (1847) 16 M & W 282 at 288; 153 ER 1195 at 1197 per Pollock CB (‘As soon as it appears to be a branch of a party's business to sell the goods of others on commission, that establishes him to be a factor’); Rolls Razor Ltd v Cox [1967] 1 QB 552 at 568 per Lord Denning MR. For an account of the history of the law of factors see R Munday, ‘A Legal History of the Factor’ (1977) 6 Anglo-Am L Rev 221. 149.Smart v Sandars (1846) 3 CB 380 at 399; 136 ER 152 at 160 per Coltman J. 150.Baring v Corrie (1818) 2 B & Ald 137 at 143; 106 ER 317 at 319 per Abbott CJ; Rolls Razor Ltd v Cox [1967] 1 QB 552 at 568 per Lord Denning MR (where it was held that salespersons who sold not in their own names but in the name and on behalf of their principal were not factors). 151.(1876) 4 Ch D 133

at 137

152.Ex parte Dixon (1876) 4 Ch D 133 153.Stevens v Biller (1883) 25 Ch D 31 154.Stevens v Biller (1883) 25 Ch D 31 agent's lien see 18.21–18.46. 155.Stevens v Biller (1883) 25 Ch D 31

. ; Stevens v Biller (1883) 25 Ch D 31 at 35 at 38

at 36

at 38

per Cotton LJ.

per Chitty J. per Cotton LJ. Nor does this impact on the factor's lien. As to the

per Chitty J.

1.24 Factors are to be distinguished from bankers. A banker who takes charge of a customer's money does not, as a general rule, owe fiduciary duties to the customer as to the money deposited because it is in the ordinary course of trade to make use of that money for the bank's own profit.156. Moreover, even if the circumstances are such as to attract in a banker a fiduciary duty, because the bank assumes the role, for instance, of acting as an independent advisor,157. this does not in itself create an agency.

156.Foley v Hill (1848) 2 HL Cas 28 at 35; 9 ER 1002 at 1005

per Lord Cottenham.

157.See, for example, Commonwealth Bank of Australia v Smith (1991) 42 FCR 390 Trusts, [4.250]–[4.260].

. See further Dal Pont, Equity and

Brokers

1.25 It is the possession of the principal's property that distinguishes a factor from a broker; brokers are employed to contract about the principal's property without being put in possession. By virtue of having possession, a factor thus

Page 13 of 13 Classification of Agents has a lien on the property whereas a broker does not.158. The distinction was captured by Holroyd J in Baring v Corrie:159. A factor, who has possession of goods, differs materially from a broker. The former is a person to whom goods are sent or consigned, and he has not only the possession, but in consequence of its being usual to advance money upon them, has also a special property in them, and a general lien upon them. When, therefore, he sells in his own name, it is within the scope of his authority: and it may be right, therefore, that the principal should be bound by the consequences of such sale; amongst which, the right of setting-off a debt due from the factor is one. But the case of a broker is different; he has not the possession of the goods, and so the vendee cannot be deceived by that circumstance; and besides, the employing of a person to sell goods as a broker does not authorise him to sell in his own name. If therefore he sells in his own name, he acts beyond the scope of his authority, and his principal is not bound. But it is said, that by these means, the broker would be enabled by his principal to deceive innocent persons. The answer however is obvious, that that cannot be so, unless the principal delivers over to him the possession and indicia of property … [I]f a factor, even with goods in his possession, acts beyond the scope of his authority, and pledges them, the principal is not bound:160. or if a broker, having goods delivered to him, is desired not to sell them, and sells them, but not in market overt, the principal may recover them back. The truth is, that in all cases, excepting where goods are sold in market overt, the rule of caveat emptor applies.

Page 21 As a factor usually sells in his or her own name, without disclosing that of the principal, the latter, with full knowledge of these circumstances, trusts the factor with the actual possession of the goods, and gives him or her authority to sell in the factor's own name. As a broker is not trusted with the possession of the goods, he or she ought not to sell other than in the name of the principal.161. The broker's role is of a more passive character, confined to the negotiation of contracts of sale and purchase for goods or services.162. Stockbrokers,163. insurance brokers164. and finance brokers165. provide common examples of brokers.

158.As to the agent's lien see 18.21–18.46. 159.(1818) 2 B & Ald 137 at 148–9; 106 ER 317 at 321 (footnote supplied). See also at 143–4; 319 per Abbott CJ. 160.See 21.20. 161.Baring v Corrie (1818) 2 B & Ald 137 at 143; 106 ER 317 at 319 per Abbott CJ. 162.Fowler v Holling (1872) LR 7 QB 616 163.See 1.38. 164.See 1.34. 165.See 1.31–1.33.

End of Document

at 623

per Brett J.

Types of Agents Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 1: Definition > Chapter 1 Definition

Types of Agents Please click on the link below to download the entire chapter.

1.26 Below are discussed various types of persons commonly either termed, or assumed to be, ‘agents’. This list is not exhaustive; the scenarios that can give rise to agency relationships are manifold,166. and cannot be reduced to a simple formula or even classes. Yet, as noted earlier,167. it is not uncommon for the term ‘agent’ to be used to describe a relationship that falls outside the legal concept of agency, making it important to appreciate how the law distinguishes agency from other legal relationships. The latter is discussed in Chapter 2.

166.See, for example, sportspersons' agents, discussed in A Buti, ‘A Servant of Many Masters: The Australian Football League Player Agent's Duty of Undivided Loyalty’ (2005) 32 UWALR 251. 167.See 1.5.

Estate agents

1.27 It is common to refer to a person employed to find a buyer of property for a vendor as an agent of the vendor, and in the case of property that is real estate, in Australia the description used is ‘real estate agent’. That term is defined for the purposes of legislation governing real estate agents.168. For example, the Agents Act 2003 (ACT) s 8(1), 8(2) prescribes that: A person carries on business as a real estate agent if the person provides, or offers to provide, a real estate agent service for a principal for reward. Each of the following is a real estate agent service: (a) buying, selling, exchanging, leasing, assigning or otherwise disposing of land; (b) negotiating with, or inducing or attempting to induce, a person to — (i) buy, sell, exchange, lease, assign or otherwise dispose of land; or (ii) enter into, or make or accept an offer to enter into, a contract to buy, sell, exchange, lease, assign or otherwise dispose of land; (c) collecting payments under a lease; (d) collecting payments under a mortgage of land or payments under a terms contract for land; (e) acting as manager of an owners corporation for a units plan; (f) any other service prescribed by regulation for this section.

Statutory definitions in the other jurisdictions are directed to the same end, though with detail variations.169. The New South Wales definition, for instance, excludes a person who carries on business as an auctioneer or agent in respect of any parcel of rural land unless the

Page 22

Page 2 of 21 Types of Agents regulations otherwise provide.170. The latter provide that the definition of ‘real estate agent’ includes a person who carries on business as an auctioneer or agent in respect of any parcel of rural land that has an area of up to 20 hectares.171.

168.For the purposes of the legislation, therefore, the statutory definition determines whether a person acts as a ‘real estate agent’, not the general law conception of agency: Hawk Australia Pty Ltd v George Ambrose Commercial Pty Ltd [2007] NSWSC 1150; BC200708823 at [36]

per Bell J.

169.Agents Licensing Act 1979 (NT) s 5(2); Property Agents and Motor Dealers Act 2000 (Qld) s 128; Land Agents Act 1994 (SA) s 4 (see Upjay Pty Ltd v MJK Pty Ltd (2001) 79 SASR 32; [2001] SASC 62; BC200100962 at [57] [65] per Wicks J, with whom Doyle CJ and Williams J concurred); Property Agents and Land Transactions Act 2005 (Tas) s 3(1) (definition of ‘real estate agency business’); Estate Agents Act 1980 (Vic) s 4 (which has been held not to apply to a person engaged for the first time in a single transaction who does not intend to engage in subsequent transactions: Garbett v Rosemen Investments Pty Ltd (2003) V ConvR ¶54-672; [2002] VSC 575; BC200208257 at [19] Smith J); Real Estate and Business Agents Act 1978 (WA) s 4(1).

per

170.Property, Stock and Business Agents Act 2002 (NSW) s 3(1). 171.Property, Stock and Business Agents Regulation 2003 (NSW) cl 5.

1.28 A real estate agent's authority is, aside from unusual and additional terms in the agency agreement, a limited mandate.172. The mere employment of such an agent does not, apart from the general rule that a principal is responsible for misrepresentations made by an agent,173. necessarily create any authority to do anything that will affect the principal's legal position. Although an estate agent may be conferred whatever express authority the principal thinks fit to give the agent, and estoppels may arise via representations as to the agent's authority,174. the law does not imply from the mere fact of engagement to find a purchaser any general authority to contract on the principal's behalf or to do on behalf of the principal anything incidental to the effecting of a sale.175. The same can be said of estate agents engaged by a purchaser to locate a property. Notwithstanding the limited authority of an estate agent, ‘the relationship between a real estate agent and the person who has retained him to sell his property is a fiduciary and confidential one’.176.

172.Murray v Veinotte [1951] 2 DLR 721 at 722 per Ilsley CJ (SC(NS)). 173.See 22.19–22.22. 174.Namely, the estoppel that stems from ostensible authority, as to which see Ch 20. 175.Petersen v Moloney (1951) 84 CLR 91 at 94–5 753

per Dixon, Fullagar and Kitto JJ; Sorrell v Finch [1977] AC 728

per Lord Russell; Brien v Dwyer (1978) 141 CLR 378 at 395; BC7800086

at

per Gibbs J.

176.D'Atri v Chilcott (1975) 55 DLR (3d) 30 at 39 per Galligan J (HC(Ont)). See also Knoch Estate v Jon Picken Ltd (1991) 83 DLR (4th) 447 at 467 per Griffiths JA (CA(Ont)); Gonsalves v Debreczeni (1998) 9 BPR 16,689 at 16,696–7; BC9806554

Auctioneers

1.29

per Young J. As to agents' duties in this regard see Ch 12.

Page 3 of 21 Types of Agents The general principles of the law of agency apply to auctioneers. However, the agency involved is somewhat unique in that an auctioneer may in the one transaction act as agent for both vendor and purchaser. As an auctioneer can sign the contract of sale on the purchaser's behalf on the fall of the hammer, at that moment the auctioneer also becomes the agent of the purchaser, with authority to sign a memorandum evidencing the contract of sale for both parties, although before and after that moment the auctioneer was/is solely agent for the vendor.177. The above principles may need modification in the context of electronic auctions conducted via a website (‘eauctions’, for example eBay), where the auctioneer arguably acts chiefly as an intermediary and accordingly plays a less active role in the auction process. It is common, to this end, for the terms and conditions of the e-auction site to disclaim any agency relationship. Yet the latter, in view of the courts' ‘substance over form’ approach to determining the existence or otherwise of an agency relationship,178. are not necessarily determinative. It is the extent to which the e-auction house assumes a more substantial role in the conduct of the auction process, beyond merely hosting the website where the e-auction takes place, that arguably determines the applicability of accepted agency principles.179.

Page 23

177.See 8.19–8.22. 178.See 1.5, 1.6. 179.See A Reynolds, ‘E-Auctions: Who will Protect the Consumer?’ (2002) 18 JCL 75 (who argues that Australian courts will find an agency relationship between the e-auction company and the vendor (as principal) where the e-auction house: (i) is involved in payment; (ii) can ‘interfere’ with the vendor's listing (say, the nature or description of the goods); (iii) intercedes in the auction process itself (due to purchaser queries or software errors); (iv) promotes a particular vendor in some way (for example, rewarding a vendor for sustained good feedback from purchasers); (v) states that there is a special relationship with the vendor (for instance, an explicit agency agreement): at 102); Evagora v eBay Australia and New Zealand Pty Ltd [2001] VC 49.

Donees of powers of attorney

1.30 A ‘power of attorney’ refers to a formal instrument that confers upon a person the authority to act for or in the place of another as agent, often for the purpose of signing legally binding documents for that other.180. A power of attorney is useful, to this end, where an authority is required to be conferred by deed, or in other circumstances where a formal appointment of an agent to act in one or more transactions, or to manage the affairs of the principal, is desired.181. As the efficacy of a power of attorney rests on the law relating to principal and agent, attorneyship is no more than ‘a formal agency’.182. Thus the legal ramifications of the agency relationship apply to an agency created via a power of attorney, except to the extent that they are modified by statute. There are dedicated Acts or statutory provisions in each jurisdiction governing powers of attorney.183. Reflecting its status as a legal power, it is common when referring to a power of attorney to adopt the language of ‘donor’ and ‘donee’ (or ‘attorney’) in place of principal and agent, although the powers of attorney legislation in some jurisdictions now identifies the donor as ‘principal’.184. Powers of attorney (like agency relationships generally) terminate or are revoked by the subsequent mental incapacity of the principal,185. unless the power in question fulfils the requirements of an ‘enduring power of attorney’.186. The latter — as distinguished from a general power of attorney — is not revoked by the principal's later mental incapacity.187. So an act done by an attorney under an enduring power of attorney during a period of the principal's legal incapacity is as effective as if the principal were not incapacitated.188.

Page 4 of 21 Types of Agents

180.Gibbons v Wright (1954) 91 CLR 423 at 444; BC5400600 per Dixon CJ, Kitto and Taylor JJ (who stressed ‘the unique character of a power of attorney as an instrument not affecting the title to property or the rights or obligations of persons, but merely conferring an authority’). As to the concept of a power of attorney generally see Dal Pont, Powers of Attorney, Ch 1. 181.P E Nygh and P J Butt (eds), Butterworths Australian Legal Dictionary, Butterworths, Sydney, 1997, p 897. The balance of authority indicates that at common law the term ‘power of attorney’ only applies to an authority conferred by deed: Comptroller of Stamps (Vic) v Papalia (1982) 82 ATC 4080 at 4082 per Crockett J. Under Powers of Attorney Act 2006 (ACT) s 29(1), a power of attorney that complies with the Act is ‘taken to be a deed, even though it is not expressed to be a deed or to be sealed’. For this purpose ‘power of attorney’ includes both an amendment and a revocation of a power of attorney: s 29(2). 182.Parkin v Williams [1986] 1 NZLR 294 at 299

per Richardson J (CA).

183.See Powers of Attorney Act 2006 (ACT); Powers of Attorney Act 2003 (NSW); Powers of Attorney Act 1980 (NT); Powers of Attorney Act 1998 (Qld); Powers of Attorney and Agency Act 1984 (SA); Powers of Attorney Act 2000 (Tas); Instruments Act 1958 (Vic) Pts, XI, XIA; Property Law Act 1969 (WA) Pt VIII; Guardianship and Administration Act 1990 (WA) Pt 9. 184.See, for example, Powers of Attorney Act 2006 (ACT) s 6; Powers of Attorney Act 2003 (NSW) s 3(1); Powers of Attorney Act 1998 (Qld) s 5(1). 185.See 25.19. 186.See 4.29. 187.This is recognised by statute: Powers of Attorney Act 2006 (ACT) ss 8, 32(1); Powers of Attorney Act 2003 (NSW) ss 19, 21; Powers of Attorney Act 1980 (NT) s 13; Powers of Attorney Act 1998 (Qld) s 32; Powers of Attorney and Agency Act 1984 (SA) s 6; Powers of Attorney Act 2000 (Tas) s 30; Instruments Act 1958 (Vic) s 115(2); Guardianship and Administration Act 1990 (WA) s 105. See further Dal Pont, Powers of Attorney, [1.25]–[1.27]. As to the revocation of powers of attorney see Ch 26. 188.This is recognised by statute in most jurisdictions: Powers of Attorney Act 2006 (ACT) s 32(2); Powers of Attorney Act 2003 (NSW) s 21(1); Powers of Attorney Act 1980 (NT) s 13; Powers of Attorney and Agency Act 1984 (SA) s 6(3); Powers of Attorney Act 2000 (Tas) s 30(4); Guardianship and Administration Act 1990 (WA) s 105(2).

Finance brokers

1.31 The main function of a finance broker (sometimes termed ‘mortgage broker’) is as a negotiator or intermediary to obtain credit. Being characterised as a ‘broker’, a finance broker is prima facie the agent of the borrower.Though the facts may indicate that a finance broker is

Page 24 an agent of the lender,189. it has been noted that ‘such an agency will not readily be inferred’.190. That the broker introduces a client to a lender,191. and the broker's commission or fee for doing so is sourced from the lender, does not itself justify such an inference.192. Nor is the fact that the broker completes the lender's forms, or arranges the signing of documents, conclusive of an agency to the lender.193. In the words of a New South Wales judge:194. The fact that the broker approached a finance company, arranged for execution of documents, provided details of … the [borrower's] financial position, arranged for the obtaining of an invoice from the supposed vendor, and otherwise took steps to enable the smooth application for and completion of the transaction, in no way constitutes him the agent for [the lender].

The curial reticence to cast the financier as principal in this context is illustrated by Esanda Finance Corporation Ltd v Spence Financial Group Pty Ltd,195. which involved the purchase of a vessel by the first defendant financed by the plaintiff finance company. The defendants engaged a finance broker (JHF) to assist the first defendant to obtain finance for the purchase. Following an unsuccessful attempt to arrange finance, JHF suggested that application be made to the plaintiff. Newnes M remarked that merely because representatives of JHF at that stage referred to the

Page 5 of 21 Types of Agents close relationship they had, and the amount of business they did, with the plaintiff, did not suggest an agency relationship. That JHF had, and completed, the finance application form and submitted it, together with financial and other information required, to the plaintiff, did not alter this conclusion. The Master viewed this as consistent with both JHF's role as the finance broker for the defendants and the terms of the loan, under which the defendants expressly acknowledged that JHF was not the agent of the plaintiff.196. A case closer to the line, but again resulting in a refusal to mark the financier as principal, is Custom Credit Corporation Ltd v Lynch.197. There the fact that a merchandiser had an arrangement with a credit provider to finance purchases of that merchandise by customers was held to be insufficient of itself to make the merchandiser an agent of the credit provider. The reticence to characterise finance brokers as agents of the lender in any event rests on the basis that this outcome does not often reflect the commercial reality of the transaction. It is unusual for a broker to be vested with authority by the lender to represent it, or act on its behalf

Page 25 in soliciting business for it. Accordingly, the reasonable expectation of both the intending borrower and the lender is that the broker owes a duty to the borrower to act in the borrower's interests; as a consequence the lender cannot be liable as principal for the broker's defaults, which is most commonly the issue in cases of this kind.

189.See 1.32. 190.Esanda Finance Corporation Ltd v Spence Financial Group Pty Ltd [2006] WASC 177; BC200606626 at [65] Newnes M.

per

191.NMFM Property Pty Ltd v Citibank Ltd (No 10) (2000) 107 FCR 270; [2000] FCA 1558; BC200006827 at [1021] per Lindgren J (‘not every person who introduces one person to another for the purpose of their making a contract is necessarily an agent of that other’). 192.Mercantile Credit Co Ltd v Hamblin [1965] 2 QB 242 at 269 per Pearson LJ; Aaron Acceptance Corp v Adam (1987) 37 DLR (4th) 133 at 138 per Wallace JA (CA(BC)); Morlend Finance Corporation (Vic) Pty Ltd v Westendorp [1993] 2 VR 284 at 308

per Fullagar J; Custom Credit Corporation Ltd v Lynch [1993] 2 VR 469 at 486

per Marks J; Micarone v Perpetual Trustees Australia Ltd (1999) 75 SASR 1 at 123–5; [1999]SASC 265; BC9903786

per Debelle and Wicks JJ; NMFM Property Pty Ltd v Citibank Ltd (No 10) (2000) 107 FCR 270; [2000]

FCA 1558; BC200006827 at [544] [562]

per Lindgren J (in the context of financial advisors); Perpetual Trustees

Australia Ltd v Schmidt [2010] VSC 67; BC201002712 at[131]

per J Forrest J; Tonto Home Loans Australia Pty Ltd

v Tavares (2011) 15 BPR 29,699; [2011] NSWCA 389; BC201110342 at [191] [194] per Allsop P, with whom Bathurst CJ and Campbell JA concurred; Technology Leasing Ltd v Lennmar Pty Ltd [2012]FCA 709; BC201204911 at [171]

per Cowdroy J; Quikfund (Australia) Pty Ltd v Prosperity Group International Pty Ltd (in liq) (2013) 209 FCR

368; [2013] FCAFC 5; BC201300216 at [75] [77] BC201300843 at [96] [99]

per the court; Provident Capital Ltd v Papa [2013] NSWCA 36;

per Allsop P, with whom Macfarlan JA and Sackville AJA agreed on this point. See also

Custom Credit Corporation Ltd v Griffith-Jury Co Pty Ltd [1965] WAR 77 (where a hire–purchase dealer was held not to be the agent of the finance company in a case involving the latter seeking priority in insolvency: see 2.8). 193.Branwhite v Worcester Works Finance Ltd [1969] 1 AC 552 Financial Pty Ltd [2005] NSWSC 398; BC200502553 at [104]

at 577

per Lord Upjohn; Steele-Smith v Liberty

per Palmer J.

194.Octapon Pty Ltd v Esanda Finance Corporation Ltd (SC(NSW), Cole J, 3 February 1989, unreported) BC8902608 at 27–8. 195.[2006] WASC 177; BC200606626

.

196.Esanda Finance Corporation Ltd v Spence Financial Group Pty Ltd [2006] WASC 177; BC200606626 at [66], [67] 197.[1993] 2 VR 469

.

.

Page 6 of 21 Types of Agents

1.32 Ultimately, though, the question in each case depends upon the terms of the intermediary's engagement. An express appointment as agent for the lender is ordinarily determinative, although this does not preclude a court finding that, if as a result of the agent's conduct vis-Ã -vis the borrower the latter has a reasonable expectation that the agent acts for the borrower, the agents acts for both the lender and the borrower, thereby giving rise to a potential duty–duty conflict.198. Outside of an express appointment as agent for the lender, a court may nonetheless find such a relationship if the evidence reveals that the lender has exercised a level of control and direction over the agent's functions — at least within a limited ambit — sufficient to raise the inference that the agent was acting on the lender's behalf.199.

198.As to agents representing multiple principals see 12.41–12.55. 199.See, for example, Permanent Trustee Company Ltd v O'Donnell (2009) 15 BPR 28,101; [2009]NSWSC 902; BC200908096 at [336] [362]

per Price J; Michalopoulos v Perpetual Trustees Victoria Ltd [2010] NSWSC 1450;

BC201009718 at [136] [142]

per White J; Bartle v GE Custodians Ltd [2010] 3 NZLR 601; [2010] NZCA 174 at

[246] [249]

per William Young P.

1.33 In Queensland and Western Australia, where specific hire–purchase legislation remains in force, that legislation prescribes that any provision in an agreement or other document whereby any person acting on behalf of the owner under a hire–purchase agreement in connection with or in the course of the negotiations leading to that agreement is treated as, or declared to be, the agent of the hirer, is void.200.

200.Hire-Purchase Act 1959 (Qld) s 33(1)(e); Hire-Purchase Act 1959 (WA) s 28(1)(e).

Insurance intermediaries201.

201.As to insurance agents and brokers generally see Sutton, Ch 5.

Insurance brokers

1.34 An ‘insurance broker’ acts as an intermediary between the insured and the insurer, and solicits insurance from the public under no employment from a particular insurer. Upon securing an order from a prospective insured, an insurance broker places that order with the insurer selected by the insured or, where the insured makes no such selection, with an insurer selected by the broker. Like a finance broker, therefore, an insurance broker is an independent contractor202. who promises to endeavour to achieve a specified result — to secure insurance coverage upon the terms prescribed by his or her client — and stipulates for the receipt of a commission upon doing so.203. So an insurance broker is not generally the agent of the insurer, but agent for the insured,

Page 7 of 21 Types of Agents notwithstanding that he or she is ordinarily remunerated out of the insurer's premium.204. As explained by Rowles JA in Keddie v Canada Life Assurance Company:205.

Page 26 Insurance brokers market themselves to the public explicitly on the basis that they are independent and beholden to no particular insurance company. Insurance brokers, by the nature of their business, appeal to the public, in part, by denying an agency relationship and the loyalty to an insurance company which such a relationship implies. In taking that stance, a broker would reduce the appearance to persons such as [a prospective insured] of acting as an agent for any particular company.

As in the case of finance brokers, the general principle that a person who agrees to procure insurance for another should be regarded as the latter's agent for the purpose of obtaining that insurance is to a certain extent necessitated by commercial practicality.206.

202.As to agents as independent contractors see 2.21, 2.22. 203.Erikson v Carr (1945) 46 SR (NSW) 9 at 14

per Jordan CJ; Harvest Trucking Co Ltd v P B Davis [1991] 2 Lloyd's

Rep 638 at 643 per Diamond J; Henderson v Amadio Pty Ltd (No 1) (1995) 62 FCR 1 at 128; BC9502016 Heerey J. 204.Anglo-African Merchants Ltd v Bayley [1970] 1 QB 311

at 322–4

per

per Megaw J; Re Colin Williams

(Insurance) Pty Ltd (in liq) and the Companies Act [1975] 1 NSWLR 130 at 135

per Helsham J; Eagle Star

Insurance Co Ltd v National Westminster Finance Australia Ltd (1985) 58 ALR 165 at 171

(PC); Con-Stan

Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Aust) Ltd (1986) 160 CLR 226 at 234 (FC); Harvest Trucking Co Ltd v P B Davis [1991] 2 Lloyd's Rep 638 at 643 per Diamond J; Zurich Insurance (Singapore) Pte Ltd v B– Gold Interior Design & Construction Pte Ltd [2008] 3 SLR(R) 1029; [2008] SGCA 27

. Cf HIH Casualty & General

Insurance Ltd v JLT Risk Solutions Ltd [2007] 2 Lloyd's Rep 278; [2007] EWCA Civ 710 at [60] per Auld LJ (opining that ‘[t]he role of an insurance broker is notoriously anomalous for its inherent scope for engendering conflict of interest in the otherwise relatively tidy legal world of agency’, as ‘[i]n its simplest form, the negotiation of insurance, the broker acts as agent for the insured, but normally receives his remuneration from the insurer in the form of commission’). 205.(2000) 179 DLR (4th) 1 at 15 (CA(BC)). 206.Zurich Insurance (Singapore) Pte Ltd v B–Gold Interior Design & Construction Pte Ltd [2008] 3 SLR(R) 1029; [2008] SGCA 27 at [157], [158]

per V K Rajah JA.

Insurance agents

1.35 An ‘insurance agent’, on the other hand, is a person who is engaged by and represents an insurer. Hence, an insurance agent is the agent of the insurer, not of the insured. Insurance agents ordinarily have a fixed and permanent relation with a particular insurer, or more than one insurer, and so they represent and owe certain duties and allegiances to those insurers.207. It follows that an insurance agent owes no duty as agent to the insured — with the notable exception of a duty to complete the proposal form accurately, in line with instructions given by the prospective insured208. — though like other agents in their relationships with third parties, may be liable to the insured for misleading or deceptive conduct under statute or for other wrongful conduct (such as misrepresentation, duress, undue influence or unconscionable conduct).209.

Page 8 of 21 Types of Agents 207.Western Australian Insurance Co Ltd v Dayton (1924) 35 CLR 355 at 376 per Isaacs ACJ (who described insurance agents as ‘gatherers’ invested with authority to go out and ‘direct in some way the flow of premiums to the coffers’ of insurers); Re Colin Williams (Insurance) Pty Ltd (in liq), Re the Companies Act [1975] 1NSWLR 130 at 135 per Helsham J; Norwich Fire Insurance Society Ltd v Brennans (Horsham) Pty Ltd [1981] VR 981 at 985

per Lush J.

208.See 11.45. 209.As to agents' liability to third parties generally see Pt VII.

Distinction between insurance agents and brokers

1.36 Disputes as to the status of an insurance intermediary arise most commonly where it is contened that the alleged principal ought to be liable for the intermediary's defaults,210. or where the knowledge of the intermediary is sought to be attributed to the alleged principal.211. Whether a person acts as a broker or an agent is determined not by what he or she is called but by what he or she does;212. the issue is one of substance over form. Expressed another way, distinguishing between a broker and an agent is more about the way in which insurance is sold than the title of the person selling or arranging that insurance.213. It is possible, for instance, in rare circumstances that a broker may also be the agent of the insurer, although the courts will not readily infer such a relationship because a broker so placed faces a clear conflict of interest between his or her duty to the insured and to the insurer.214. Ordinarily, an insurance broker is not converted into an agent of the insurer without some action on the part of the insurer, or the existence of some facts from which the broker's authority to represent the insurer as an agent may be fairly inferred.215.

210.See 22.19–22.39. 211.See 22.49–22.66. 212.Norwich Fire Insurance Society Ltd v Brennans (Horsham) Pty Ltd [1981] VR 981 at 985 neither the word ‘broker’ nor the word ‘agent’ is a term of precision).

per Lush J (observing that

213.Keddie v Canada Life Assurance Company (2000) 179 DLR (4th) 1 at 15 per Rowles JA (CA(BC)). 214.Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Aust) Ltd (1986) 160 CLR 226 at 234 (FC). As to conflicts between principals see 12.41–12.55. 215.Travelers Indemnity Co v National Indemnity Co, 292 F 2d 214 at 220 (8th Cir 1961).

Impact of statute

1.37 Statute does not purport to upset the distinction between insurance brokers and insurance agents except in two ways. First, where an insurance broker acts under a ‘binder’, it

Page 27 is required to disclose this to a prospective client, and to explain, inter alia, the significance of the services being provided under a binder.216. A ‘binder’ is an authorisation given by an insurer to the broker to enter into insurance contracts on behalf of the insurer, and/or deal with and settle, again on its behalf, claims relating to risk insurance products against the insurer.217. This dictates that, when acting under a binder, an insurance broker is treated as an agent of the insurer.218. The duty of disclosure aims to ensure that prospective insureds are under no misapprehension as to whom an insurance intermediary represents in carrying out his or her business. It also impacts upon who is liable for any default by the intermediary; if acting as agent for the insurer, it is the insurer and not the insured who is liable in this respect.

Page 9 of 21 Types of Agents

Second, an insurance broker is treated as the agent of the insurer for the purposes of receiving premiums paid by the insured for transmission to the insurer, or paid by the insurer for transmission to the insured.219. This reverses the common law position, under which the broker remains agent for the insured, meaning that the insured rather than the insurer would bear the consequences of any default or shortfall at broker level.220.

216.Corporations Act 2001 (Cth) s 942B(2)(i). Prior to the commencement of the financial services statutory regime (Corporations Act 2001 (Cth) Ch 7) on 11 March 2002, statutory disclosure obligations of insurance intermediaries were prescribed principally by Insurance (Agents and Brokers) Act 1984 (Cth) s 16 (repealed). 217.Corporations Act 2001 (Cth) s 761A. 218.On this point see also Corporations Act 2001 (Cth) s 916E. 219.Corporations Act 2001 (Cth) s 985B. 220.As established by Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Aust) Ltd (1986) 160 CLR 226

, discussed at 8.17.

Stockbrokers

1.38 The function of a stockbroker is ‘to buy and sell a commodity on the market’,221. usually at the direction of an undisclosed principal. The stockbroker's basic duty to this end is to ‘execute the orders which his client gives him’.222. Stockbrokers are properly characterised as agents,223. as they contract on behalf of a principal and therefore create rights and liabilities for their principal.224. However, as stockbrokers usually trade in a competitive market, they have no real ability to influence the price at which the commodity is purchased or sold, and so act more as an intermediary than a negotiating agent.225. Hence, the scope of the stockbroker's retainer, and therefore his or her duty, is somewhat limited. Even so, stockbrokers are, like other agents, subject to fiduciary duties, namely to avoid a conflict of interest and duty and to eschew unauthorised profits.226.

221.Christopher Barker & Sons v Inland Revenue Commissioner [1919] 2 KB 222 222.Option Investments (Aust) Pty Ltd v Martin [1981] VR 138 at 142 (Aust) Pty Ltd (No 2) [1982] VR 464

at 229

per Rowlatt J.

per Lush J (affd Martin v Option Investments

).

223.Cf Fraser v B N Furman (Productions) Ltd [1967] 1 WLR 898 at 910 per Winn LJ, who considered that to speak of stockbrokers and others who sell advice and services as ‘agents’ is to use loose terminology, reasoning that these persons ‘are not really agents at all, since they are not in fact employed to bring A into commercial relations with B’. 224.See 1.1–1.3. 225.Jones v Canavan [1972] 2 NSWLR 236 at 243

per Jacobs JA. See further 12.50, 12.51.

226.As to agents' fiduciary duties see 10.6–10.16.

Lawyers227.

227.See generally D A DeMott, ‘The Lawyer as Agent’ (1998) 67 Fordham L Rev 301.

Page 10 of 21 Types of Agents

Solicitors

1.39 In that the essence of agency is a person representing the interests of another to third parties,228. solicitors clearly fall into the realm of agency. The scope of the agency — that is, the scope of the solicitor's authority to create legal relations or otherwise impact legally on

Page 28 the client's rights and duties— rests on the terms of the retainer agreement. Within the confines of the retainer, the agency relationship between solicitor and client carries with it the authority to do all such things incidental to the object of the representation.229. As stated by an English judge in the nineteenth century: ‘The attorney is the general agent of the client in all matters which may reasonably be expected to arise for decision in this cause’.230. For instance, a solicitor retained to conduct litigation has authority to do all things necessary and proper for the conduct of the litigation and need not refer questions arising in interlocutory matters to the client for specific instructions.231. Not every aspect of a solicitor's role necessarily involves explicit notions of agency. It is difficult to discern the requisite representational function where the solicitor is engaged in a purely advisory role. At the same time, though, the agency-linked notion that a solicitor's knowledge obtained in his or her capacity as a solicitor should be imputed to the client232. can function even in an advisory context.233.

228.See 1.4. 229.See 8.25. 230.Prestwich v Poley (1865) 18 CBNS 805 at 816; 144 ER 662 at 666 per Montague Smith J. 231.Ex parte Maxwell (1955) 72 WN (NSW) 333 at 336

per Roper CJ in Eq.

232.See generally 22.49–22.64. 233.Bell Group Ltd (in liq) v Westpac Banking Corp (No 9) (2008) 39 WAR 1; [2008] WASC 239; [6177] [6184]

BC200809492 at

per Owen J (affd Westpac Banking Corporation v Bell Group Ltd (in liq) (No 3) (2012) 44 WAR 1;

[2012] WASCA 157; BC201206001

).

Counsel

1.40 That the relationship between counsel and client is not traditionally of a contractual nature has led at least one judge to query whether it can properly be described as a relationship of agent and principal.234. As the law recognises non-contractual agencies,235. the lack of a contractual connection should not in itself deny agency. Moreover, it is clear that counsel is conferred authority to deal on the client's behalf, albeit traditionally through the intermediary of a solicitor. Any authority the solicitor has to instruct counsel is a derivative authority — it must be derived from the authority conferred by the client. Courts that have assumed counsel to be agent for the client have done so in the context of counsel being authorised to compromise on the client's behalf, such that the compromise is binding on the client,236. and in the context of counsel being an agent lawfully authorised to sign for the client for the purposes of statutory formalities.237. Hence, counsel's agency functions to bind the client. It cannot function to create liability to the client in contract — for there is no contract — nor will it necessarily attract liability in tort if within the scope of counsel's immunity from negligence.238. The counterpoint in this respect is that counsel does not have a right of indemnity or lien against, nor a right to claim remuneration from, the client. This is largely an historical legacy, namely a ‘trade custom’ that at general law

Page 11 of 21 Types of Agents counsel looks to the instructing solicitor for remuneration but cannot sue the instructing solicitor or the client for that remuneration.239.

234.Matthews v Munster (1887) 20 QBD 141 at 142 per Lord Esher MR (who described such phraseology as ‘misleading’). See also at 144–5 per Bowen LJ, who opined if it was correct to say that counsel is an agent of the client, this agency was not one ‘in the ordinary sense’, counsel having ‘particular authority’. 235.See 4.14–4.20. 236.See, for example, Hansen v Marco Engineering (Aust) Pty Ltd [1948] VLR 198 at 203 237.See, for example, Grindell v Bass [1920] 2 Ch 487 156 at 159–60

at 492–3

per Fullagar J.

per Russell J; Grummitt v Natalisio [1968] VR

per Gillard J.

238.As to counsel's immunity see Dal Pont, Lawyers' Professional Responsibility, [5.225]–[5.310]. 239.See G E Dal Pont, ‘The Recovery of Counsel's Fees’ (2004) 23 UQLJ 380. This has, in any case, been modified by statute in some jurisdictions: see Dal Pont, Lawyers' Professional Responsibility,[3.35], [15.10].

Company directors

1.41 It was said by Lord Cairns in 1866 that the directors of a company ‘are merely agents of the company’, the reason being that the company ‘itself cannot act in its own person, for it

Page 29 has no person; it can only act through its directors, and the case is, as regards those directors, merely the ordinary case of principal and agent’.240. It is a company's status as an artificial person that invites the concept of agency in the corporate arena; the separation of ownership and management is thus founded upon general law principles of agency. That which a company does flows from the managerial authority of its directors, which authority derives from the agency relationship between the directors and the company. In transacting on behalf of a company, directors act as the company's agents. Other company officers are only able to bind the company to a transaction (that is, act as the company's agent) because the authority to do so has been passed down to them from the directors. All company officers, with the exception of directors who derive their powers from the company's constitution, can therefore trace their power to act for the company back to the authority of the directors. By accepting responsibility for managing a company's affairs, the directors accept an almost total conferral of power. It is this extremely wide agency relationship that gives rise to strict fiduciary obligations.241. Outside of the fiduciary proscriptions, the concept of agency has been utilised as a vehicle through which to make liable a company for the acts or defaults of a director,242. to attribute to the company the knowledge or intent of its directors,243. and to attach to the company liability for admissions made by its directors.244. Yet most of the case law in this context has focused upon the authority of a director (or other company officer), whether actual or ostensible, to bind the company contractually. It has long been accepted that a company can enter into binding contracts through agents. The Corporations Act 2001 (Cth) itself recognises in s 126(1) that ‘a company's power to make, vary, ratify or discharge a contract may be exercised by an individual acting with the company's express or implied authority and on behalf of the company’.

240.Ferguson v Wilson (1866) LR 2 Ch 77 at 89. See also Bath v Standard Land Co Ltd [1911] 1 Ch 618 Moulton LJ.

at 636

per

241.As to the fiduciary duties of agents see 10.6–10.16, 12.2–12.55. As to directors' fiduciary duties see Dal Pont, Equity and Trusts, [4.85]–[4.130].

Page 12 of 21 Types of Agents 242.See, for example, Mair v Rio Grande Rubber Estates Ltd [1913] AC 853 at 867–8 per Lord Moulton (company liable for misrepresentations contained in its prospectus).

per Lord Shaw, at 872–3

243.Bath v Standard Land Co Ltd [1911] 1 Ch 618 at 636–7 per Fletcher Moulton LJ. As to the attribution of knowledge and intent of an agent to the principal see 22.49–22.64. 244.See 22.70–22.72.

1.42 The foregoing should not be understood to deny that companies can enter into binding contracts directly, as opposed to through the acts of an agent. There is a distinction between a company contracting directly and through an agent, a distinction affirmed by a majority of the High Court in MYT Engineering Pty Ltd v Mulcon Pty Ltd.245. A company's board of directors acting in accordance with the powers of management conferred on it by the company's constitution acts as the company itself, not merely as its agent. It follows that the company is bound by any resultant contract directly rather than through the acts of its agent.246. In this respect, it must be noted that, although at one time it was thought that companies could only enter into contracts directly by affixing their common seal to an agreement,247. statute has ousted the requirement

Page 30 that companies have a common seal.248. A company may execute a document without using a common seal if the document is signed by its prescribed officers.249. If a company contracts directly without using its common seal, the persons who sign the documents act as executants, not as agents on behalf of the company. This is because a company must ‘manifest its acts and intentions by the actions and declarations of human beings’.250.

245.(1999) 195 CLR 636 at 647–8; BC9902256

per Gleeson CJ, Gaudron, Gummow and Hayne JJ. See also Black v

Smallwood (1966) 117 CLR 52 at 61–2; BC6600020

per Windeyer J.

246.Some judges have referred to the ‘organic theory’ of company law to justify the same result. The theory, which was initially developed in the context of criminal law, notes that the powers of a company are shared between its two primary organs — the directors and shareholders — and holds that in some circumstances the board of directors and the members in general meeting (a company's organs) may be treated as acting as the company itself. Therefore, an organ acting within its authority is regarded as acting not simply as the company's agent, but as the company itself. From this premise, it is possible to attribute certain company officers' state of mind to the company for the purpose of satisfying the elements of an offence. Given the High Court's decision in MYT Engineering Pty Ltd v Mulcon Pty Ltd (1999) 195 CLR 636; BC9902256 it is unnecessary to rely on the organic theory to support the proposition that companies can enter contracts directly and that when they do so the principles of agency are of no relevance. 247.The common law rule is that the common seal is required to bind a company: A R Wright & Son Ltd v Romford Borough Council [1957]1 QB 431

.

248.Corporations Act 2001 (Cth) s 123. 249.Namely: (a) two directors of the company; (b) a director and a company secretary; or (c) for a proprietary company that has a sole director who is also the sole company secretary — that director: Corporations Act 2001 (Cth) s 127(1). 250.Black v Smallwood (1966) 117 CLR 52 at 61; BC6600020 Mulcon Pty Ltd (1999) 195 CLR 636 at 647–8; BC9902256

Receivers

1.43

per Windeyer J. See also MYT Engineering Pty Ltd v per Gleeson CJ, Gaudron, Gummow and Hayne JJ.

Page 13 of 21 Types of Agents The terms of a secured loan (mortgage or debenture) document commonly prescribe the circumstances in which the lender (mortgagee or debenture holder) can intervene to protect its security by appointing a receiver.251. Thus the loan is obtained on condition of the lender's entitlement, for the purpose of making its security effective, to appoint a receiver with powers of sale and of management pending sale and with full discretion as to the exercise and mode of exercising those powers.252. These powers stem from the loan document; powers conferred on receivers by statute are subject to the terms of the document.253.

251.These may include the failure to meet interest or principal repayments, the failure to maintain specified debt to equity, liquidity or asset-backing levels, and/or the failure to perform other covenants and conditions specified in the debenture document. 252.Re B Johnson & Co (Builders) Ltd [1955] Ch 634

at 661–2

per Jenkins LJ.

253.Corporations Act 2001 (Cth) s 420(2).

1.44 The document under which a receiver is appointed usually expressly provides that the receiver is an agent of the borrower (mortgagor), although this can be inferred via a process of construction.254. This finds statutory form under the general conveyancing enactments in each jurisdiction, which provide that a debenture holder who enjoys the security of a mortgage over property by deed may appoint a receiver to receive income from the mortgaged property, in which case the receiver is deemed to be the agent of the mortgagor.255. The receiver is appointed agent of the mortgagor chiefly to protect the mortgagee from liability incurred by the receiver;256. were the receiver agent for the mortgagee, the general law of agency would dictate that the mortgagee as principal would be liable for the receiver's defaults.257. The mortgagee thus also avoids the responsibilities of a mortgagee in possession.258.

Page 31 The foregoing is the case even though it is the mortgagee who obtains the benefit of the receiver's appointment through the payment of the interest or principal to which it is entitled under the loan.259. Nor does the receiver become agent for the mortgagee simply because the mortgagor goes into liquidation; the receiver retains a limited agency on behalf of the mortgagor in so far as it is compatible with the statutory winding up scheme.260. As agent of the mortgagor, the receiver's duty to the mortgagor is to exercise his or her powers bona fide with the object of obtaining repayment of the debt owing to the mortgagee.261. In so doing, the receiver's duties must be carried out with the interests of the mortgagor, its creditors and (where the mortgagor is a company) its shareholders in mind, although this duty is not so strict as to be fiduciary262. (unless the receiver is also empowered to manage the mortgagor's business, in which case fiduciary duties akin to those of directors attach).263. It requires a receiver to exercise powers of sale with due care, skill and judgment to obtain the best results reasonably possible in the circumstances.264. In the case of corporate receiverships, statute requires receivers who exercise a power of sale to take all reasonable care to sell the property for not less than its market value or, if it does not have a market value at the time of sale, the best price that is reasonably obtainable in the circumstances.265. Receivers are entitled to be indemnified by the mortgagor (as principal) for expenses and liabilities properly incurred just as other agents are entitled to be indemnified by their principal.266.

254.Gosling v Gaskell [1897] AC 575

at 595

per Lord Davey; Cully v Parsons [1923] 2 Ch 512

.

255.Civil Law (Property) Act 2006 (ACT) ss 301(1)(b), 309; Conveyancing Act 1919 (NSW) ss 109(1)(c), 115(2); Law of Property Act 2000 (NT) s 96(2); Property Law Act 1974 (Qld) ss 83(1)(c), 92(2) (see Commonwealth Bank of Australia v Muirhead [1997] 1 Qd R 567; BC9603365 ); Law of Property Act 1936 (SA) ss 47(1)(c), 53(2); Conveyancing and Law of Property Act 1884 (Tas) ss 21(1)(c), 26(2); Property Law Act 1958 (Vic) ss 101(1)(c), 109(2); Property Law Act 1969 (WA) s 65(1), 65(2). See also Law of Property Act 1925 (UK) ss 101, 109.

Page 14 of 21 Types of Agents 256.Bride v Freehill Hollingdale & Page [1996] ANZ ConvR 594 at 595 (FC(WA)); State Bank of New South Wales Ltd v Chia (2000) 50 NSWLR 587; [2000] NSWSC 552; BC200005381 at [868] v Dennis (2007) 163 FCR 343; [2007] FCA 1448; BC200707897 at [109]

per Einstein J; South Johnstone Mill Ltd per Middleton J.

257.As to a principal's liability for an agent's defaults see generally Pt VI. 258.Gaskell v Gosling [1896] 1 QB 669

at 691–2

per Rigby LJ in dissent (affd Gosling v Gaskell [1897] AC 575

). Courts traditionally considered the entry into possession by a mortgagee a strong assertion of its legal rights, in that the mortgagee did not come under an obligation to account to the mortgagor except in a suit for redemption. The mortgagee in possession was accordingly treated with ‘exceptional severity’ in a suit for redemption and made to account, not only for what it actually received, but for what it might without wilful default have received. See Gosling v Gaskell at 691 per Rigby LJ in dissent; Robbie & Co Ltd v Witney Warehouse Co Ltd [1963] 3 All ER 613 at 623 Russell LJ; Downsview Ltd v First City Corporation Ltd [1993] AC 295 at 315 Palk v Mortgage Services Funding plc [1993] Ch 330 at 336–7 per Nicholls VC.

per

per Lord Templeman (PC);

259.Gosling v Gaskell [1897] AC 575 at 595 per Lord Davey. This has led one commentator to question whether there is ‘really any need to persist with the legal fiction of the receiver's titular agency on behalf of the mortgagor’: J O'Donovan, ‘The Power to Appoint Receivers and Managers with Joint and Several Authority’ (1998) 16 C&SLJ 566 at 574. 260.Graeme Webb Investments Pty Ltd v St George Partnership Banking Ltd (2001) 38 ACSR 282; [2001]NSWCA 93; BC200101635 at [57], [58]

per Fitzgerald JA, with whom Sheller JA and Ipp AJA agreed; Cripps v Lakeview Farm

Fresh Ltd (in receivership) [2006] 1 NZLR 238 at [19]

per MacKenzie J.

261.Downsview Ltd v First City Corporation Ltd [1993] AC 295

at 312

per Lord Templeman (PC).

262.Matai Industries Ltd v Jensen [1989] 1 NZLR 525 at 538 per Tipping J. It has been said that the agency of a privately appointed receiver is perhaps the only genuinely non-fiduciary agency: Meagher, Gummow and Lehane, [28225]. 263.Re Dover (1981) 6 ACLR 307 at 310

per Waddell J.

264.Nelson Bros Ltd v Nagle [1940] GLR 507 at 508 per Myers CJ; R v Board of Trade [1965] 1 QB 603 per Phillimore J; Expo International Pty Ltd v Chant [1979] 2 NSWLR 820 at 834 Traders Ltd v Downes [1981]2 NZLR 247

per Needham J; Consolidated

; Standard Chartered Bank Ltd v Walker [1982] 3 All ER 938 at 942

per Lord Denning MR; Sullivan v Darkin [1986] 1 NZLR 214 at 222 Henderson [1989] 2 NZLR 257 at 261–2

at 614

per Somers J; RA Price Securities Ltd v

per Somers J; Johnson v Australian Guarantee Corporation Ltd (1992) 59

SASR 382 at 399 per Mullighan J; Downsview Ltd v First City Corporation Ltd [1993] AC 295 Lord Templeman (PC).

at 315

per

265.Corporations Act 2001 (Cth) s 420A. 266.As to the agent's right to indemnity see 18.8–18.20.

1.45 Yet the receiver's primary object, and duty to the mortgagee, is to get in the moneys for which the security was given, an object that may conflict with the role as agent of the mortgagor.267. So a receiver's agency is not an ‘ordinary’ agency but one ‘special and

Page 32 limited in its character’.268. Fox LJ explained its nature in Gomba Holdings Ltd v Minories Finance Ltd:269. [T]he receiver acts as agent for the mortgagor in that he has power to affect the mortgagor's position by acts which, though done for the benefit of the debenture holder, are treated as if they were the acts of the mortgagor. The relationship set up by the debenture, and the appointment of the receiver, however, is not simply between the mortgagor and the receiver. It is tripartite and involves the mortgagor, the receiver and the debenture holder. The receiver is appointed by the debenture

Page 15 of 21 Types of Agents holder, on the happening of specified events, and becomes the mortgagor's agent whether the mortgagor likes it or not. And, as a matter of contract between the mortgagor and the debenture holder, the mortgagor will have to pay the receiver's fees. Further, the mortgagor cannot dismiss the receiver since that power is reserved to the debenture holder as another of the contractual terms of the loan. It is to be noted also that the mortgagor cannot instruct the receiver how to act in the conduct of the receivership.

It follows that although the agent of the mortgagor, the receiver is the appointee of the mortgagee and, in practical terms, has a close association with the latter. The mortgagee also has a right, as against the receiver, to be put in possession of all information concerning the receivership available to the receiver.270. The tripartite nature of the relationship in issue can create conflict, for instance, as to the ownership of documents created by the receiver during the receivership, which was the issue in the Gomba case. It can also create confusion regarding the duties of solicitors to the mortgagor, as in Bride v Freehill Hollingdale & Page.271. There the Full Court of the Western Australian Supreme Court rejected the mortgagee's argument that the solicitors for the receiver owed it a duty of care of a solicitor–client nature. It noted that the existence of fiduciary duties, coupled with obligations of confidentiality, owed by the solicitor for the receiver ‘shows how difficult it would be to import … a deemed relationship between a mortgagee and the solicitors to the receiver merely through some form of sub-agency’.272. As a receiver is usually appointed where an adverse relationship has developed between mortgagor and mortgagee, this must ‘flow into the relationship between mortgagor and receiver in the performance by the latter of the duties incumbent in the role’.273.

267.Re B Johnson & Co (Builders) [1955] Ch 634

at 644–5

per Evershed MR; Sheahan v Carrier Air Conditioning

Pty Ltd (1997) 189 CLR 407 at 418–19; BC9703510 per Brennan CJ. In Re B Johnson & Co (Builders) Ltd at 662 Jenkins LJ noted that the whole purpose of the appointment of a receiver and manager would be stultified if the debtor company could claim that the receiver and manager owed it any duty comparable to the duty owed to a company by its own directors or managers. 268.R v Board of Trade [1965] 1 QB 603

at 617

per Winn J. See also Carey v Korda and Winterbottom

(No 2) (2011) 85 ACSR 331; [2011]WASC 220; BC201106767 at [36] per Edelman J (who opined that ‘serious caution must be exercised when construing the meaning of the word “agent” and attributing consequences to the use of that label … particularly the case in the context of the relationship between receiver and company’); Bank of Western Australia Ltd v Abdul [2012] VSC 222; BC201203748 at[36] per Croft J (noting that while the appointment of the receiver as the agent of the mortgagor, the secured debtor, might have been regarded as something in the nature of a ‘contrivance’, ‘it is a longstanding and accepted common practice which … is not now open to question, short of legislative intervention’); Edenwest Ltd v CMS Cameron McKenna [2013] BCC 152; [2012] EWHC 1258 (Ch) at [60] [72]per Hildyard J (explaining the ways in which the concept of agency is, in this context, ‘artificial or contrived’: at [62]). 269.[1989] 1 All ER 261 at 263

. See also Visbord v Federal Commissioner of Taxation (1943) 68 CLR 354 at 376

per Starke J, at 382 per Williams J; BC4300037 (affd Gosling v Gaskell [1897] AC 575

at 588

; Gaskell v Gosling [1896] 1 QB 669

Davey); Federal Commissioner of Taxation v Card (1963) 109 CLR 177 at 184 J;

BC6300160

at 691

per Rigby LJ

per Lord Watson, at 593 per Lord Herschell, at 595 per Lord per McTiernan J, at 190 per Taylor

; Wiley v Commonwealth Bank of Australia (1995) 18 ACSR 299 at 304;

BC9502837

per

Lockhart J; Sheahan v Carrier Air Conditioning Pty Ltd (1997) 189 CLR 407 at 418–19 per Brennan CJ, at 431–3 per Dawson, Gaudron and Gummow JJ; BC9703510; Silven Properties Ltd v Royal Bank of Scotland plc [2004] 4 All ER 484; [2003] EWCA Civ 1409 at [27] [2004] VSC 36; BC200400511 at[306]

per Lightman J; National Australia Bank Ltd v Walter (2004) 1 BFRA 509; per Dodds-Streeton J.

270.Re Magadi Soda Co Ltd (1925) 41 TLR 297

.

271.[1996] ANZ ConvR 594 (FC(WA)). 272.Bride v Freehill Hollingdale & Page [1996] ANZ ConvR 594 at 596. 273.Bride v Freehill Hollingdale & Page [1996] ANZ ConvR 594 at 596.

Page 16 of 21 Types of Agents

1.46 The basic notion that a receiver is an agent of the mortgagor cannot shield the reality of the situation entirely. If the mortgagee directs or interferes with the receiver's activities, the receiver can be seen as also acting as agent for the mortgagee, in which case the mortgagee

Page 33 becomes liable as principal for the receiver's actions.274. So where, in State Bank of New South Wales Ltd v Chia,275. the mortgagee was ‘heavily involved’ in the performance of the activities of the receiver to the extent of directing when and to whom the receiver was to exercise its power of sale, Einstein J held that the receiver became agent of the mortgagee. For this to be the outcome, more generally, the evidence must show that the mortgagee ‘was so intimately involved in the performance of the receiver's activities as to transform the character of the relationship between the mortgagee … and the receiver into one of principal and agent’.276. Communications and reports as between receiver and mortgagee, or even the expression of preferences by the mortgagee, are not, for this purpose, to be equated to the direction, interference and instruction necessary to displace the receiver– mortgagor agency.277.

274.Wiley v Commonwealth Bank of Australia (1995) 18 ACSR 299 at 304–5; BC9502837

per Lockhart J. Cf Gosling v

Gaskell [1897]AC 575 at 595 per Lord Davey (the fact that the mortgagees ‘had the right to exercise certain control over the conduct of the business, would not … make [the receiver] their agent for the purpose of pledging their credit’). 275.(2000) 50 NSWLR 587; [2000] NSWSC 552; BC200005381

at [886].

276.Bank of Western Australia Ltd v Abdul [2012] VSC 222; BC201203748 at [41]

per Croft J.

277.State Bank of New South Wales Ltd v Chia (2000) 50 NSWLR 587; [2000] NSWSC 552; BC200005381 at [881] [885] per Einstein J; South Johnstone Mill Ltd v Dennis (2007) 163 FCR 343; [2007] FCA 1448; BC200707897 at [110] [124] per Middleton J; Bank of Western Australia Ltd v Abdul [2012] VSC 222; BC201203748 at [41] per Croft J (adding that ‘[t]he degree of communication and interaction generally between a receiver and a mortgagee … depends very much on the nature of the secured property, hence the size, nature and complexity of the receivership task’: at [42]; on the facts, the receiverships were complex, involving 17 separate operating businesses with significant sensitivity in terms of statutory, regulatory and licensing issues, thus making it unsurprising that there was frequent interaction between the mortgagee and the receivers: at [43]).

Liquidators

1.47 The status of a liquidator varies according to the particular duties to be carried out in the course of the winding up.278. A liquidator has been described as having a threefold status: agent of the company for some activities, officer of the court in relation to others, and a trustee for creditors in respect of others again.279. The description of a liquidator as a trustee, however, is inaccurate because the liquidator does not owe the duties of a trustee to creditors;280. the trusteeship mantle is used in the colloquial sense to express the notion that the liquidator's ultimate responsibility is to realise and distribute company property for the benefit of its creditors.281. No such inaccuracy applies in characterising a liquidator as the agent of the company in respect of which he or she has been appointed. For example, for the purpose of instructing solicitors and paying costs a liquidator is an agent only.282. Like other agents, liquidators must exercise proper care and skill in carrying out their duties,283. must not engage in a transaction where duty and interest conflict,284. may seek an indemnity from the company in respect of the

Page 17 of 21 Types of Agents

Page 34 liabilities properly incurred285. and may exercise a lien as security for the latter.286. Yet the veil of agency does not subsume all of a liquidator's tasks. In dealing with proofs of debt, for instance, the liquidator performs a quasijudicial function, as explained in Tanning Research Laboratories Inc v O'Brien:287. The authorities all point to the position of the liquidator, when dealing with a proof of debt, as exercising an administrative role in the course of his duties. He is required to assess who are the creditors for the purpose of distributing the assets to the extent that these are available. If, for the purpose of getting in those assets, he has to bring proceedings, then he does so in the name of the company and as agent for it, and anything recovered is then available to him for the purpose of his administration. When he considers each proof of debt, however, he is not the company; he is acting as an officer of the court in carrying out a duty to ascertain the creditors, a duty which is of an administrative nature.

So in carrying out statutory duties to get in company property, and to apply it according to a defined order in satisfaction of the company's liabilities,288. a liquidator's function is better viewed as an officer of the court than as an agent of the company.289.

278.Tanning Research Laboratories Inc v O'Brien (1987) 11 ACLR 778 at 789; BC8701387 grounds: O'Brien v Tanning Research Laboratories Inc (1988) 14 NSWLR 601 Research Laboratories Inc v O'Brien (1990) 169 CLR 332; BC9002954

per Cohen J (revd on other

; further appeal dismissed: Tanning

).

279.C M Schmitthoff (ed), Palmer's Company Law, 23rd ed, Stevens & Sons, London, 1982, para 85-38. 280.Re Quatrovision Pty Ltd (in liq) [1982] 1 NSWLR 95 at 103

per Powell J.

281.Re Silver Valley Mines (1882) 21 Ch D 381

per Cotton LJ. Cf Bastion v Gideon Investments Pty Ltd

at 392

(in liq) (2000) 35 ACSR 466 at 477; [2000] NSWSC 939; BC200006310

per Austin J.

282.Re Anglo-Moravian Hungarian Junction Railway Co (1875) 1 Ch D 130 at 133 per James LJ. See in particular Corporations Act 2001 (Cth) s 477(2) regarding the particular powers which a liquidator can exercise on behalf of the company. 283.Re Silver Valley Mines (1882) 21 Ch D 381 FCR 485 at 497–8; BC9800006

at 392

per Cotton LJ; Pace v Antlers Pty Ltd (in liq) (1998) 80

per Lindgren J. See also Dunphy v Sleepyhead Manufacturing Co Ltd [2007] 3

NZLR 602; [2007] NZCA 241 at [19] [24] , [49] per O'Regan J (liquidators found to act as agents for the bank in realising the assets subject to the bank's security interest, and thus obliged to comply with the statutory duties imposed on the bank in this context). As to agents' duties in this context see Ch 11. 284.See, for example, Corporations Act 2001 (Cth) s 532(2) (disqualification of persons as liquidators). As to agents' duties in this context see [12.21]–[12.40]. 285.Re Anglo-Moravian Hungarian Junction Railway Co (1875) 1 Ch D 130 381

at 392

; Re Silver Valley Mines (1882) 21 Ch D

per Cotton LJ.

286.Nationwide News Pty Ltd v Samalot Enterprises Pty Ltd (No 2) (1986) 5 NSWLR 227 FCR 222; BC9103386

; Shirlaw v Taylor (1991) 31

.

287.(1987) 11 ACLR 778 at 791; BC8701387 Laboratories Inc (1988) 14 NSWLR 601 O'Brien (1990) 169 CLR 332; BC9002954

per Cohen J (revd on other grounds: O'Brien v Tanning Research ; further appeal dismissed: Tanning Research Laboratories Inc v ).

288.As to liquidators' duties see A R Keay, McPherson: The Law of Company Liquidation, 4th ed, LBC Information Services, Sydney, 1999, pp 357–86. 289.Tanning Research Laboratories Inc v O'Brien (1987) 11 ACLR 778 at 790–1; BC8701387 other grounds: O'Brien v Tanning Research Laboratories Inc (1988) 14 NSWLR 601

per Cohen J (revd on

; further appeal dismissed:

Page 18 of 21 Types of Agents Tanning Research Laboratories Inc v O'Brien (1990) 169 CLR 332; BC9002954 Taylor [1998] VSC 77; BC9806046 at [170] [172]

). Cf Lentinan Corporation Pty Ltd v

per Ashley J; Australian Securities and Investments Commission

v Landy DFK Securities Ltd (2002) 123 FCR 548; [2002] FCA 1056; BC200204770 at [29], [30]

per Merkel J.

Partners

1.48 The partnership legislation in each jurisdiction defines a partnership as the relation that subsists between persons carrying on a business in common with a view to profit.290. The test of a business being carried on in common requires determining whether or not the person who carries on that business does so as agent for all persons who are alleged to be partners.291. As such, agency can exist apart from partnership but partnership cannot exist apart from agency. However, mere liability to third parties for the acts of a person who actually conducts the business affairs of the partnership is not, in itself, conclusive evidence of the carrying on of a business in common. Were it so, all agents would be partners of their principals, which is clearly not so. In addition, there is a requirement for a mutuality of rights and obligations between the persons on whose behalf the business is carried on.292. In turn, this explains why, inter alia, the mere existence of a joint venture does not dictate that the one venturer is an agent of the others in dealing with third parties.293.

Page 35 Not only is the concept of agency relevant to the creation of a partnership — at least as referable to the element of carrying on business in common294. — it retains its relevance to the conduct of the partnership. This is expressly recognised by the partnership legislation, reiterating the common law.295. The relevant New South Wales provision, Partnership Act 1892 s 5(1), reads as follows:296. Every partner in a partnership other than a firm that is a limited partnership or incorporated limited partnership is an agent of the firm and his other partners for the purpose of the business of the partnership, and the acts of every partner who does any act for carrying on in the usual way business of the kind carried on by the firm of which he is a member bind the firm and his partners, unless the partner so acting has in fact no authority to act for the firm in the particular matter and the person with whom he is dealing either knows that he has no authority or does not know or believe him to be a partner.

As the above does little more than replicate general law agency principles, it is no surprise to find judicial statements that the law of partnership is merely a branch of the law of agency.297. The main distinguishing factor between partner and agent is that a partner is not only an agent for the partnership but, when a transaction is effected on behalf of the partnership, is concurrently a principal along with the other partners in the sense of being jointly and severally liable for that transaction.298. Moreover, because of its nature a contract of partnership is subject to a considerable number of special implications now codified in the partnership legislation, to which other agency relationships are not.299.

290.ACT s 6; NSW s 1; NT s 5; Qld s 5; SA s 1; Tas s 6; Vic s 5; WA s 7. This corresponds to the common law definition of a partnership: see United Dominions Corporation Ltd v Brian Pty Ltd (1985) 157 CLR 1 at 15; BC8501106 Dawson J. 291.Lang v James Morrison & Co Ltd (1911) 13 CLR 1 at 11; BC1100017

per Griffith CJ; Momentum Productions Pty

Ltd v Lewarne (2009) 174 FCR 268; [2009] FCAFC 30; BC200901916 at [44] 292.Smith v Anderson (1880) 15 Ch D 247

at 275

per James LJ.

per

per the court.

Page 19 of 21 Types of Agents 293.Consolo Ltd v Bennett (2012) 207 FCR 127; [2012] FCAFC 120; BC201206471 at [88] [90]

per the court; Alliance

Craton Explorer Pty Ltd v Quasar Resources Pty Ltd (2013) 296 ALR 465; [2013] FCAFC 29; BC201301037 at [54] per the court. 294.Beyond this, it has been observed, ‘agency should be regarded as one of the incidents of a partnership, rather than as an essential defining element thereof’: Momentum Productions Pty Ltd v Lewarne (2009) 174 FCR 268; [2009] FCAFC 30; BC200901916 at [36]

per the court.

295.Cassels v Stewart (1881) 6 App Cas 64

at 79

per Lord Blackburn; Birtchnell v Equity Trustees, Executors

and Agency Co Ltd (1929) 42 CLR 384 at 408; BC2900019 Hexyl Pty Ltd (1985) 155 CLR 541 at 544–5; BC8501129

per Dixon J; Construction Engineering (Aust) Pty Ltd v (FC).

296.Equivalent provisions are found in other jurisdictions: ACT s 9; NT s 9; Qld s 8; SA s 5; Tas s 10; Vic s 9; WA s 26. See further Fletcher, pp 159–73. 297.Cox v Hickman (1860) 8 HL Cas 268 at 312; 11 ER 431 at 449 & Manly Steamship Co (1957) 57 SR (NSW) 403 at 410 (FC).

per Lord Wensleydale; Beckingham v Port Jackson

298.Re Agriculturist Insurance Co (Baird's case) (1870) LR 5 Ch App 725

at 733

per James LJ; Momentum

Productions Pty Ltd v Lewarne (2009) 174 FCR 268; [2009]FCAFC 30; BC200901916 at [44] 299.Erikson v Carr (1945) 46 SR (NSW) 9 at 14

per the court.

per Jordan CJ.

Forwarding agents

1.49 A forwarding agent is a person who undertakes the shipment or transmission of goods.300. In that forwarding agents have possession of their principals' goods in order to organise their shipment or transmission, they owe to their principals a duty as bailees to exercise reasonable care in and about the collection of the goods.301. Importantly, these duties do not end once the forwarding agent has arranged for the principal's goods to be loaded on a ship or aircraft; he or she ‘is to do all that he reasonably can to further the safe arrival of the goods to the consignee at the destination’.302. The forwarding agent to this end acts as a post office or filter should the owner of the ship or aircraft require further directions so far as the goods are concerned. Hence, a forwarding agent who prevents the delivery of the goods to the consignee at the port of destination breaches a positive term of the agency contract.303. Like other agents, forwarding agents are entitled to a lien regarding the goods in their possession,304. and an indemnity for costs incurred on behalf of their principals in carrying out

Page 36 the agency.305. Forwarding agents, however, unlike ordinary agents,306. incur a personal liability to the carrier for the payment of the freight by virtue of trade custom, even where they disclose that they act for an identified or a named principal.307.

300.See, for example, Lee Cooper Ltd v C H Jeakins & Sons Ltd [1967] 2 QB 1

at 8

per Marshall J.

301.Pringle of Scotland Ltd v Continental Express Ltd [1962] 2 Lloyd’s Rep 80 at 87 per McNair J. 302.Langley, Beldon & Gaunt Ltd v Morley [1965] 1 Lloyd’s Rep 297 at 307 per Mocatta J. 303.Langjey, Beldon & Gaunt Ltd v Morley [1965] 1 Lloyd’s Rep 297 at 307 per Mocatta J. 304.Langley, Beldon & Gaunt Ltd v Morley [1965] 1 Lloyd’s Rep 297 at 306 per Mocatta J. As to the agent's lien see 18.21– 18.46. 305.Perishables Transport Company Ltd v N Spyropoulos (London) Ltd [1964] 2 Lloyds Rep 379 at 381–2 per Salmon LJ. As to the agent's right to indemnity generally see 18.8–18.20.

Page 20 of 21 Types of Agents 306.Generally, agents who contract on behalf of a disclosed principal within their authority do not incur personal liability on that contract: see 19.1. 307.Perishables Transport Company Ltd v N Spyropoulos (London) Ltd [1964] 2 Lloyd’s Rep 379 at 382 per Salmon LJ; Langley, Beldon & Gaunt Ltd v Morley [1965] 1 Lloyd’s Rep 297 at 306 per Mocatta J.

Travel agents

1.50 Although commonly termed ‘agents’, it is unclear to what extent travel agents are properly to be characterised as agents at law. Travel agents do contract on behalf of principals, and so meet at least one of the basal criteria for agency. The question necessarily arises, however, as to what form of duties travel agents owe to their principals. These duties are clearly contractual and tortious308. — and can be equitable where, in particular, receipt of trust money is involved309. — which can be owed to both the intending traveller and the tour operator/carrier, as a travel agent may be agent for the carrier or operator for one purpose while concurrently an agent for the traveller for another purpose.310. The application of the fiduciary proscription against the representation of competing principals thus needs modification to accurately reflect the nature of a travel agent's role.311. Perhaps the better view is that a travel agent ‘is simply in a contractual relationship with its clients, wholesalers and suppliers, and the scope of its liability hinges upon what the travel agent expressly and impliedly undertakes’.312.

308.See, for example, Douglas v Steele, 816 P 2d 586 (Okla App 1991). 309.See, for example, Stephens Travel Service International Pty Ltd (receivers and managers appointed) v Qantas Airways Ltd (1988) 13 NSWLR 331; BC8801851

.

310.See, for example, Levine v British Overseas Airways Corp, 66 Misc 2d 766 (Civ Ct, NY County 1971). Cf the scenario where a travel agent, rather than simply acting as an intermediary (agent) as between the tour operator and the traveller, actually undertakes to provide the tour services, in which case the travel agent is contracting as principal: see, for example, Wong Wee Wan v Kwan Kin Travel Services Ltd [1996] 1 WLR 38

.

311.See 12.51. 312.Y Chittenden, ‘Legal Liability of Travel Agents: Are They Agents at All?’ (1999) 8 Auck LR 1061 at 1089.

The Crown

1.51 Apart from statute to the contrary, there is no legal prohibition or restriction on the Crown acting as agent if it chooses deliberately to do so. Importantly, the court will not find the Crown to have assumed the role of agent unless there is evidence that clearly establishes the Crown's intention to act as an agent.313. That the relationship in issue exhibits some but not all of the characteristics of agency is insufficient to substantiate any such intention, although this will not prevent the court from finding some other legal relationship.314.

Page 37

313.Civilian War Claimants Association Ltd v The King [1932] AC 14 at 27 per Lord Atkin (ruling that the Crown was not an agent of moneys received under the Treaty of Versailles); Administrator of German Property v Knoop [1933] 1 Ch 439 at 456 per Maugham J (‘the Sovereign cannot be taken as negotiating or acting as agent for the nationals of its own State’).

Page 21 of 21 Types of Agents 314.Guerin v The Queen (1984) 13 DLR (4th) 321 at 342–3 per Dickson J. His Honour noted that the fiduciary relationship between the Crown and the Indians bore a certain resemblance to agency, ‘since the obligation can be characterized as a duty to act on behalf of the Indian bands who have surrendered lands, by negotiating for the sale or lease of the land to third parties’. However, he concluded that the Crown was not an agent for the Indians because not only did the Crown's authority to act on the band's behalf lack a basis in contract, but the band was not a party to the ultimate sale or lease, as it would have been were it the Crown's principal. Dickson J held that the fiduciary obligation owed to the Indians by the Crown was sui generis, not derived from agency. Cf Mabo v State of Queensland (No 2) (1992) 175 CLR 1 at 111–13

End of Document

per Deane and Gaudron JJ, at 200–4 per Toohey J; BC9202681.

Identifying the Principal Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 1: Definition > Chapter 1 Definition

Identifying the Principal Please click on the link below to download the entire chapter.

The importance of identifying the principal

1.52 In some circumstances, it may be unclear as to which of the parties to a transaction an agent represents. It is nonetheless crucial that the relevant agency relationship be identified. This is because an agent owes duties of a contractual, tortious315. and fiduciary316. nature to the principal, which constitutes a clear motivation for one person to argue that another is his or her agent. Moreover, as a principal is, as a general rule, liable for the defaults of the agent effected within the course of the agency,317. an alleged principal may be motivated to refute any suggestion of an agency relationship. An example arises in the insurance scenario, where one of the parties to an insurance contract may seek to make the other liable for the fraud of an insurance intermediary. It may also be critical to identify the capacity in which an agent is acting in a given situation. It cannot be assumed, in certain scenarios, that all of an agent's actions are conducted in the capacity of agent for the principal. An illustration is found in company law, where it is permissible for directors — who are agents of, and owe fiduciary duties to, the company318. — to vote their own shares in their own interests rather than in the interests of the company (principal) as a whole.319. The same is the case in relation to a director voting as proxy on the instructions of other shareholders; the director should vote as directed by those shareholders, and in doing so is not subject to a duty as director requiring that he or she vote in accordance with what he or she believes is in the best interests of the company.320.

315.As to agents' contractual and tortious duties see 10.1–10.5, Ch 11. 316.As to agents' fiduciary duties see 10.6–10.16, 12.2–12.55. 317.See generally Pt VI. 318.See 1.41. 319.North-West Transportation Co Ltd v Beatty (1887) 12 App Cas 589

.

320.Whitlam v Australian Securities and Investments Commission (2003) 57 NSWLR 559; [2003]NSWCA 183; BC200303690 at [152] [154]

.

Agent who acts in some way for both parties

1.53 In many of the cases involving arguments of this kind, the uncertainty has stemmed from the fact that the agent has acted in some way or another for both parties. Yet this does not justify the conclusion that the agent has represented both parties and has therefore committed a fiduciary (or other) breach.321. The agent may have had a

Page 2 of 5 Identifying the Principal limited agency in respect of one of the parties, but a more extensive one in relation to the other; these need not necessarily conflict, but may coexist. The court's task is to identify the scope of the agency that has given rise to the dispute in question. The issue has arisen in the case law chiefly in the context of real estate agents and insurance agents/brokers. The former is discussed below,322. whereas the latter is discussed elsewhere.323. Wombat Nominees Pty Ltd v De Tullio324. serves as an example of the courts' approach outside of either of these scenarios. In that case the plaintiffs invested moneys with finance consultants who on-lent those moneys to the defendant. The defendant was introduced to the finance consultants through a land broker who drafted the memorandum of mortgage that identified the plaintiffs as mortgagees. The defendant paid interest to the plaintiffs through the land broker, but the land broker failed to account to the plaintiffs for some of these payments. The broker was convicted of fraud and made bankrupt, and the issue arose as to whom the broker was representing. If he was the agent of the plaintiffs, then the defendant was not liable for the

Page 38 broker's default.If, however, he was the agent of the defendant, the latter would be liable to the plaintiffs for the default. O'Loughlin J held that the broker was the agent of the plaintiffs neither for the purpose of making the loan nor for receiving any money from the defendant — all payments were made by the defendant to the land broker as her agent.That the plaintiffs retained or instructed the broker to prepare the memorandum of mortgage was not sufficient to constitute the broker as their agent other than for that express purpose. Hence, the plaintiffs were entitled to the property in question as mortgagees.

321.See 12.47–12.55. 322.See 1.54–1.56. 323.See 22.25–22.29. 324.(1990) 98 ALR 307; BC9003680

.

Illustration — estate agents Listing agents compared to selling agents

1.54 A principal (vendor) may engage an agent to sell his or her property under a multiple listing agreement. What this dictates is that, whereas the property is listed with one agent (the ‘listing agent’), other persons who conduct the business of agents can present offers to purchase on behalf of prospective purchasers and earn a commission out of the sale proceeds should the offer be accepted by the vendor. The main issue in this context relates to whether or not an agent other than the listing agent (the ‘selling agent’) who presents an offer is an agent of the purchaser, an agent of the vendor, or an agent for both. The practical implications of this dilemma are illustrated by the Ontario Court of Appeal case of Knoch Estate v Jon Picken Ltd325. The vendor of property listed under a multiple listing agreement accepted an offer to purchase the property submitted on behalf of the purchaser by an agent who was not the listing agent. The selling agent knew, at the time of presenting the offer, that a third party may have also been interested in purchasing the property, and in fact the property was subsequently on-sold by the purchaser to that third party at a profit. The vendor alleged that the selling agent owed it a fiduciary duty to disclose the possibility of a later more profitable sale, which necessitated proof that the selling agent was agent for the vendor. Finlayson JA rejected the proposition that ‘an agent who has undertaken the task on behalf of a purchaser of acquiring a suitable piece of property becomes the agent of the vendor by the simple act of submitting an offer on

Page 3 of 5 Identifying the Principal behalf of his client to the agent of the vendor’.326. On the facts, the selling agent had nothing to do with the vendor, there being nothing in industry practice or usage to convert the selling agent into an agent for the vendor. Moreover, that the vendor paid the selling agent's commission was not determinative because of the industry practice that the vendor usually pays all commissions. Hence, although the selling agent owed a duty to act fairly in dealing with the vendor, this did not extend to disclosing confidential information about the purchaser's intentions regarding the property in question. Griffiths JA likewise noted that the case law at best supported the proposition that a member of a multiple listing service may be, as opposed to is, an agent of the vendor. A contrary conclusion ‘would mean that no member of a multiple listing service could ever act for any purchaser buying a listing through that service’.327. His Honour also rejected the vendor's claim, but on the ground that the essential elements giving rise to a fiduciary relationship between the parties were lacking. The court's conclusion was clearly correct, namely that, stated at its most general, whether an agency relationship exists between the vendor and the selling agent depends on the facts of each case — it is neither a presumption nor a foregone conclusion. If a prospective purchaser engages an agent for the purpose of seeking out, on the purchaser's behalf, a property not listed by the agent, the agent is the agent of the purchaser. Certainly were the offer to purchase

Page 39 presented by a principal as opposed to an agent, there would arise no issue of a duty to the vendor. Why this result should differ merely because the offeror is an agent of a principal is unclear, and seems to be grounded in the illdefined notion that all estate agents act for vendors. The issue, rather, concerns in what circumstances such a purchaser's agent can also owe duties of agency to the vendor. In Knock Finlayson JA made the following remark in this context:328. [I]n any given real estate transaction, there can be an agent for the purchaser and an agent for the vendor. This is not to say that in many instances the court should not find that a particular agent has become the agent for both the vendor and the purchaser. In that circumstance, where problems arise, it may be appropriate to explore the duties that arise and determine to whom the agent's primary duty lies.

That his Honour was willing to countenance that ‘in many instances’ a court may find the agent to be agent for both parties cannot be taken to mean that the agent owes the full spectrum of agency duties to each such party. Were this so, the agent would be hopelessly in conflict, as the interests of purchaser and vendor are opposed diametrically for most intents and purposes. Finlayson JA recognised this, noting that if, contrary to his ruling, the selling agent became the agent of the vendor, no fiduciary duty could arise because in representing the purchaser the agent could not also be the fiduciary of the vendor.329. In Griffiths JA's judgment perhaps lies the key to resolving this matter. His Honour reasoned that a selling agent ‘may be the agent of the vendor for limited purposes, which include authorisation to present an offer to purchase and to receive notice to the vendor, as well as to make representations binding on the vendor’.330. The selling agent's agency for the vendor thus involves an implied authority to act, not a fiduciary duty to disclose or to avoid a conflict of interest.

325.(1991) 83 DLR (4th) 447. 326.Knoch Estate v Jon Picken Ltd (1991) 83 DLR (4th) 447 at 457. 327.Knoch Estate v Jon Picken Ltd (1991) 83 DLR (4th) 447 at 467, citing Wypych v McDowell (1990) 11 RPR (2d) 89 at 96 per Gautreau DCJ (DC(Ont)). 328.Knoch Estate v Jon Picken Ltd (1991) 83 DLR (4th) 447 at 456 (emphasis supplied). 329.Knoch Estate v Jon Picken Ltd (1991) 83 DLR (4th) 447 at 458. 330.Knoch Estate v Jon Picken Ltd (1991) 83 DLR (4th) 447 at 469–70 (emphasis supplied).

Purchaser's agent becoming agent for the vendor

Page 4 of 5 Identifying the Principal

1.55 This is not to say that a purchaser's agent cannot become agent for the vendor so as to attract fiduciary duties. In Knoch Griffiths JA observed that ‘[w]here a selling agent has direct dealings with the vendor or renders advice with respect to an offer to purchase, he or she may create a situation wherein the vendor reposes trust and confidence in the selling agent to such an extent as to put the agent in the position of a fiduciary’.331. In Australia, unlike in Canada, fiduciary duties are prescriptive;332. agents owe no positive fiduciary duty to disclose to the principal information relevant to the agency.333. Hence, had Knoch been decided in Australia, and had there been a finding of a fiduciary relationship, this would not of itself have cast a duty on the agent to disclose to the vendor its knowledge of another potential purchaser. In determining whether or not such a duty should be imposed on the purchaser's agent, Australian courts would inquire into whether or not the incidents of an agency relationship, as opposed to a fiduciary relationship, existed between the vendor and the purchaser's agent. The duty to disclose thus would be explained as a duty inherent in the agency so as to reflect the reasonable expectations raised in the vendor by the purchaser's agent. These are indeed likely to constitute the same incidents as those that attract the Canadian ‘fiduciary’ duties. For example, if the agent for the purchaser gives advice to the vendor as to the appropriateness of the offer, the vendor can reasonably expect the agent to be, at least to some extent, exercising an impartial judgment.

Page 40

331.Knoch Estate v Jon Picken Ltd (1991) 83 DLR (4th) 447 at 473. 332.See 10.6–10.8. 333.See 11.7.

The legal position

1.56 The selling agent, in accessing the multiple listing arrangement, though not directly in contractual relations with the vendor, can be viewed as representing the vendor simply because of his or her position as an estate agent.That the vendor pays the selling agent's commission has been cited as bolstering this conclusion. Yet it is difficult to appreciate how these matters should override the fact that the true agency relationship in such a case is clearly with the prospective purchaser, not with the vendor. The issue rather is to what extent the purchaser's agent can be seen also as being the vendor's agent. In Australia, consistent with the foregoing, it has rightly been said that, if a potential purchaser asks an agent to act for him or her, a relationship of contract is established between the purchaser and the agent, and the fact that the agent approaches a vendor on the purchaser's behalf does not per se create a contract between agent and vendor.334. This is subject to the rider that if, as is commonly the case, the purchaser's agent is to receive his or her commission from the vendor, the vendor consents thereto.335. Bray CJ expressed the rationale for this requirement in C v Johnson as follows:336. When the agent acts for a vendor and is remunerated by commission on the sale, the interests of agent and vendor coincide in getting the largest possible price. When an agent acts for the purchaser and is remunerated by commission on the amount of the sale, the interests of the agent and the principal are at variance, it being to the agent's interest that the price should be as high as possible, and to the principal's interest that it should be as low as possible.

Page 5 of 5 Identifying the Principal One must query the practical significance of such a conflict. Given that the purchaser's agent is paid out of the sale proceeds and, like the agent for the vendor, only if the sale goes ahead, each has the same interest, namely to ensure that a sale is effected. Any supposed conflict is no greater than that inherent in any relationship in which the agent is paid to achieve a result.337. The issue, in reality, is not one of conflict of interest, but to ensure that the circumstances justify the purchaser's agent receiving commission from the sale proceeds. This may be so where there is a contractual commitment by the vendor to make such a payment, either under the multiple listing agreement or pursuant to a separate agreement with the purchaser's agent,338. or because the relationship between the purchaser's agent and the vendor exhibits sufficient incidents of agency as to attract the agent's entitlement to commission.339.

334.C v Johnson [1967] SASR 279 at 296

per Bray CJ.

335.Moiler v Forge (1927) 27 SR (NSW) 69 at 71–2 336.[1967] SASR 279 at 296

per Street CJ.

. See also Tate v Munro (1891) 12 LR (NSW) L 71 at 74 per Darley CJ.

337.See 12.40. 338.Barr Leary & Co v Hall (1907) 26 NZLR 222 at 224–5 per Stout CJ. 339.As to the remuneration of agents see Chs 15–17.

End of Document

Chapter 2 Agency Compared with Other Legal Relationships Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 2: Agency Compared with Other Legal Relationships Page 41

Chapter 2 Agency Compared with Other Legal Relationships [Current to September 2013] Please click on the link below to download the entire chapter. Agency and the Vendor–Purchaser Relationship

2.2

Use of the term agent in the context of sales of goods

2.2

Focus on intention of the parties

2.3

Cases in which agency relationship alleged

2.4

Attempts to make the ‘principal’ liable for ‘agent's’ defaults

2.5

Attempts to secure priority

2.6

Custom Agency and Trust

2.9 2.10

Similarities

2.10

Distinctions

2.12

Agency and Bailment

2.14

Agent and Stakeholder

2.16

Agency and Employment

2.19

Agent compared to employee

2.19

Agent compared to independent contractor

2.21

Agent and Intermediary

2.23

Agency and Options

2.25

Agency and Corporate Groups

2.26

Agent and Amanuensis

2.28

2.1

Page 2 of 2 Chapter 2 Agency Compared with Other Legal Relationships The relationship of agency manifests characteristics similar to those of several other legal relationships such as employment, bailment, trust and the vendor–purchaser relationship. The differentiation of agency from other legal relationships is no mere academic exercise. If it is possible to establish that an agency has been created as opposed to some other legal relationship, then different legal consequences flow. Although in this chapter the agency relationship is compared to various other forms of relationship, this should not lead to the assumption that agency is mutually exclusive of those other relationships. It is not uncommon for agency to coexist with other legal relationships, such as bailment, trust or employment.

Page 42

End of Document

Agency and the Vendor–Purchaser Relationship Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 2: Agency Compared with Other Legal Relationships > Chapter 2 Agency Compared with Other Legal Relationships

Agency and the Vendor–Purchaser Relationship Please click on the link below to download the entire chapter.

Use of the term agent in the context of sales of goods

2.2 In business the term ‘agent’ may be used to mean a person who has no principal but who independently offers for sale some particular article having a special name.1. In this regard it must be understood that ‘[t]o carry on the business of “agent” is not the same as saying that you are contracting in the capacity of agent’.2. In business the use of the term ‘agent’ is by no means confined to persons who can create legal liabilities for a principal. Typical of this are contracts that describe one of the parties as a ‘manufacturer's agent’, a ‘distributor's agent’ or an ‘import/export agent’.3. More often than not the so-called agent in fact purchases the goods in question from the manufacturer or distributor for an agreed price, for resale at a profit. The agent is in reality a purchaser, not an agent as understood by the law. This can be contrasted with the case where the ‘agent’ is not a purchaser of the goods, but receives a commission, upon sale, usually calculated as a percentage of the sale price. This is likely to constitute an agency rather than a vendor–purchaser relationship.4. In the words of Farwell LJ, referring to a person alleged to have been a buyer rather than an agent, ‘he was to have a remuneration for selling: this is consistent with his being an agent for sale, but quite inconsistent with his being owner: an owner is not remunerated for selling his own goods’.5. Hence, merely because a person is described as a ‘sole selling agent’, for example, is not conclusive of his or her status; it depends upon the incidents of the parties' relationship. In W T Lamb & Sons v Goring Brick Company 6. the plaintiff was appointed ‘sole selling agent’ for the defendant's products Ltd [1932] 1 KB 710 at 718 under a contract obliging the plaintiff to pay ‘for all goods supplied by the end of the month following delivery’. Scrutton LJ characterised the parties' agreement as ‘very different from an agreement by which an owner of real property employs an agent to sell an estate once and for all upon the terms that if the agent finds a purchaser he shall be paid a commission upon the price and that he is to be the sole agent’.7. Greer LJ in this context referred to the ‘simple and logical distinction’ between a buyer (the plaintiff) and an agent for sale.8. The agreement in question was not one of agency at all, but one of purchaser and vendor.9.

Page 43

1.

International Harvester Company of Australia Pty Ltd v Carrigan's Hazeldene Pastoral Company (1958) 100 CLR 644 at 652; BC5800260 (FC). See also Ex parte White (1871) 24 LT 45 at 46 per James LJ (noting that the word ‘agent’ is ‘used commonly in commercial matters where the real relationship is that of vendor and purchaser’); Hollins v Fowler (1875) LR 7 HL 757 (where a cottonbroker purchasing cotton on behalf of a person whom he regarded as his principal, against whom he merely charged a broker's commission, was found by the House of Lords to be in law a vendor selling cotton to a purchaser and making what was called a commission as his profit on the sale); Bruce v Good [1917] NZLR 514 at 539

per Chapman J, also delivering the judgment of Denniston J.

Page 2 of 8 Agency and the Vendor–Purchaser Relationship 2.

Elektronska Industrija Oour TVA v Transped Oour Kintinetalna Spedicna [1986] 1 Lloyd's Rep 49 at 52 per Hobhouse J.

3.

See, for example, in the context of an export agent: W K Witt (WA) Pty Ltd v Metters Ltd [1967] WAR 15 at 18 Hale J.

4.

Livingstone v Ross [1901] AC 327

5.

Weiner v Harris [1910] 1 KB 285 at 294 . See also at 291 per Cozens-Hardy MR (who remarked that ‘the very fact that [the alleged buyer] was to be remunerated for his services is alone … almost sufficient to shew that he could not be a buyer’), at 293 per Fletcher Moulton LJ.

6.

[1932] 1 KB 710.

7.

W T Lamb & Sons v Goring Brick Company Ltd [1932] 1 KB 710

at 718

.

8.

W T Lamb & Sons v Goring Brick Company Ltd [1932] 1 KB 710

at 720

.

9.

W T Lamb & Sons v Goring Brick Company Ltd [1932] 1 KB 710 LJ.

at 718

at 333-4

, 337

per

per Sir Ford North.

per Scrutton LJ, at 721-2 per Slesser

Focus on intention of the parties

2.3 As it is the parties' intention that governs whether the relationship created is one of agency or one of vendor and purchaser,10. the decisions tend to be fact specific.11. For this reason, one judge noted, ‘[c]ases decided on other agreements give very little assistance’.12. Some examples are therefore instructive. In Fraser-Ramsay (New Zealand) (Ltd) v De Renzy13. the respondent was appointed the appellant company's ‘sole agent for the sale of’ aerating machines for one year. The agreement committed the ‘agent’ to sell not less than 25 machines for the year, and allowed the agency to be extended up to a further five years if the ‘agent’ maintained that annual sales figure. It provided that, if the agreement was determined due to effluxion of time or the failure to meet the sales target, ‘the agent shall be entitled to collect on his own account all moneys due to him in respect of machines which he shall have sold’. The agreement also prescribed the price at which the machines were to be invoiced to the ‘agent’. The New Zealand Court of Appeal held that the relationship was one of intending vendor and intending purchaser. In the words of Williams J:14. If the agreement had been acted on and machines supplied under it, the relationship between the parties would certainly have been that of vendor and purchaser and not of principal and agent, and it must be taken to have been the intention of the parties to enter into the relationship which the agreement, if carried into operation, would create … There is no trace in the agreement of the creation of or of the intention to create a fiduciary relation between the parties. The undertaking on the part of the respondent to sell not less than twenty-five machines involves an undertaking on his part to purchase from the appellant not less than twenty-five machines. The undertaking is the consideration and the only consideration given by the respondent to the appellant for the exclusive right to sell the machines for a year and for the right of renewal.

This was, in the opinion of the court, an agreement for the exclusive right of the sale of an article given in consideration of an undertaking to purchase, at the price and on the conditions named, a certain number of articles, thus involving an agreement to sell the specified number of articles at the price and on the conditions mentioned.15. Put another way, it was an agreement giving the respondent an exclusive right to sell certain goods over the sale of which the appellant represented that it had control, binding the respondent to purchase a specified quantity of such goods.16. Moreover, there were numerous clauses of the agreement regulating the relations between the parties as those of seller and buyer, but, with the exception of the nomenclature ‘agent’ and ‘principal’, lacked a single provision necessarily referable to the relation to principal and agent.17. In Ex parte White (1871) 24 LT 45 at 4818. the arrangement in question required N to dispose of goods sent to him by T, but N was not obliged to pay for those goods unless he disposed of them. At the end of each month N was to return to T an account of sales he had made, and to pay for those goods in cash within one month thereafter according to the price set in a list sent to him, without any reference to the price at which he had sold them. N retained the proceeds of sale as his

Page 3 of 8 Agency and the Vendor–Purchaser Relationship

Page 44 own moneys. The relationship between the parties was held to be vendor and purchaser, not principal and agent. Mellish LJ explained the reason for this as follows:19. But if [the consignee] is at liberty, according to the contract between him and his principal, to sell at any price he likes, to be paid at any time he likes, but is to be bound to pay over to the principal a fixed price at a fixed time, in my opinion, whatever the parties may think, that is not the relationship of principal and agent. The contract of sale which the alleged agent makes with his purchasers is not a contract made on account of his principal, for he is to pay a price which may be different, and at a time which may be different from that price which he is to receive, and that time at which he is to receive. He is … undertaking to pay a certain fixed price for the goods at a certain fixed time to his principal, wholly independently of what the contract may be which he makes with the persons to whom he sells; and my opinion, in point of law is, that if that is the real relationship between the parties, the alleged agent is making himself on his own account a contract of purchase with his principal, and is again re-selling.

The English Court of Appeal in Mercantile International Group plc v Chuan Soon Huat Industrial Group Ltd [2002] 20. distinguished Ex parte White, because in the case before it there was CLC 913; [2002] EWCA Civ 288 at [31] documentation that purported to describe the relationships between the litigants and the purchasers in terms whereby direct contracts are brought into existence between the respondent and the purchasers through the agency of the appellant and with the authority and knowledge of the respondent. As this documentation could not be proven to be a sham, Rix LJ could ‘not see how it is possible to ignore its effect’.21. It was the absence of such documentation, according to his Lordship, that was critical in Ex parte White. As a result, ‘the fact that the supplier and consignee in [Ex parte White] regarded themselves as conducting an “agency” was to little effect: what the court there had to analyse were the facts relating to the parties' course of business, which was all one way’.22.

10. Ex parte White (1871) 24 LT 45 at 46 per James LJ (affd Towle v White (1873) 29 LT 78 Corporation Ltd v Griffith-Jury Co Pty Ltd [1965] WAR 77 at 78

); Custom Credit

per Virtue J.

11. W T Lamb & Sons v Goring Brick Company Ltd [1932] 1 KB 710 at 718 per Scrutton LJ (‘no general rule can be laid down and … the wording of the agreement in each case must be carefully considered’). 12. Fraser-Ramsay (New Zealand) (Ltd) v De Renzy (1912) 32 NZLR 553 at 575

per Chapman J.

13. (1912) 32 NZLR 553. 14. Fraser-Ramsay (New Zealand) (Ltd) v De Renzy (1912) 32 NZLR 553 at 565–6 15. Fraser-Ramsay (New Zealand) (Ltd) v De Renzy (1912) 32 NZLR 553 at 567 Denniston J, at 572 per Edwards J.

. per Williams J, at 568–70 per

16. Fraser-Ramsay (New Zealand) (Ltd) v De Renzy (1912) 32 NZLR 553 at 571 per Edwards J, at 575–6 per Chapman J (‘a relation between a person who promises to buy and a person who is willing and undertakes to sell’). 17. Fraser-Ramsay (New Zealand) (Ltd) v De Renzy (1912) 32 NZLR 553 at 572–3 18. (1871) 24 LT 45 (affd Towle v White (1873) 29 LT 78

per Edwards J.

).

19. Ex parte White (1871) 24 LT 45 at 48. 20. [2002] CLC 913; [2002] EWCA Civ 288. 21. Mercantile International Group plc v Chuan Soon Huat Industrial Group Ltd [2002] CLC 913; [2002]EWCA Civ 288 at [31]

, with whom Wilson J and Waller LJ concurred.

22. Mercantile International Group plc v Chuan Soon Huat Industrial Group Ltd [2002] CLC 913; [2002]EWCA Civ 288 at [31]

, with whom Wilson J and Waller LJ concurred.

Cases in which agency relationship alleged

Page 4 of 8 Agency and the Vendor–Purchaser Relationship

2.4 The case law highlights, inter alia, that two of the main (but not only)23. reasons why plaintiffs allege the existence of an agency relationship, as opposed to a relationship of vendor and purchaser, are first, to attach liability to the alleged ‘principal’ for the defaults of its‘agent’, and second, to secure priority in goods in insolvency. Each is discussed in turn below.

23. For example, an agency relationship may be alleged, in place of a vendor–purchaser relationship, in an attempt to sustain a claim for an indemnity by the ‘agent’ against the ‘principal’: see, for example, Liu Wing Ngai t/a Kam Wah Ultrasonic Engineering Co v Lui Kok Wai t/a Almac Machinery [1996] 3 SLR(R) 508 (albeit subject to the terms of the agency agreement itself; Lai Sui Chiu J found that, although the relationship between the defendant manufacturer and the plaintiff distributor was one of agency — a conclusion influenced not only by the defendant having held out by plaintiff as agent, but because the goods in question were custom-made by the plaintiff to third-party specifications obtained by defendant, and direct contractual relationships between the defendant and third-party customers were effected through the plaintiff — any right to indemnity for the installation of the goods were superseded by the right to remuneration prescribed by the agency contract: at 574–5; the position was otherwise, though, vis-Ã -vis expenses incurred by the defendant in rectifying defects on the plaintiff's instructions, which were not covered by the contractual remuneration but came within the claim to indemnity: at 578).

Attempts to make the ‘principal’ liable for ‘agent's’ defaults

2.5 International Harvester Company of Australia Pty Ltd v Carrigan's Hazeldene Pastoral Company (1958) 100 CLR 24. provides what is arguably the leading Australian case in this context. It involved the 644 at 653; BC5800260 sale of a tractor manufactured by the appellant to the respondent by a local ‘machinery and general agent’. The appellant sought to argue that a contractual relationship existed between it and the respondent through the ‘agent’ for the purpose of making the appellant

Page 45 liable for warranties allegedly given by the appellant upon the purchase of the tractor from the ‘agent’.This the Full High Court rejected, reasoning as follows:25. No one supposes that the ‘distributing agent’ or ‘exclusive agent’ in a particular ‘territory’ for a proprietary commodity or specific kind of article or machine is there to put a ‘consumer’ into contractual relations with the manufacturer. In the case of any wide geographical distribution there is a general understanding of the practices of allotting territories, of zoning, of providing some regional superintendence of dealers or distributing‘agents’ as well as of maintenance, and sometimes of the proper use, of the machine or article. None of this implied that the manufacturer or the head supplier contracts with the ultimate buyer or ‘consumer’ as vendor.

In a similar manufacturer–distributor–customer case, Heidelberg Graphics Equipment Ltd v Andrew Knox & Associates Pty Ltd,26. O'Loughlin J observed that, although a supplier of a manufacturer's goods who has some form of concession as a regular stockist, distributor or franchisee is often described as ‘agent’, ‘main agent’, ‘selling agent’ or ‘exclusive agent’ for the manufacturer, it is more likely in modern times that the supplier buys the goods from the manufacturer and resells it to his or her own customer. Such an arrangement denies any contractual connection between manufacturer and ultimate consumer via agency; nor does it attract fiduciary duties27. in the socalled ‘agent’ except as imposed by the ‘agency’ agreement.28. Such an arrangement may, however, give rise to an agency relationship if the parties so prescribe and if they intend that the vendor will retain control over the subsales.29. The arrangement may impose a tortious duty of care on the manufacturer to ultimate purchaser, but merely because an intermediary between those persons is described as an ‘agent’ does not of itself serve to entitle either the purchaser or the manufacturer to any contractual claim against the other.

Page 5 of 8 Agency and the Vendor–Purchaser Relationship

24. (1958) 100 CLR 644; BC5800260. 25. International Harvester Company of Australia Pty Ltd v Carrigan's Hazeldene Pastoral Company (1958) 100 CLR 644 at 653; BC5800260

. See also Wheeler and Wilson v Shakespear (1869) 39 LJ Ch 36; Re Watson & Co [1904]

2 KB 753 at 758 per Vaughan Williams LJ (‘The fact that they are so described as agents is not, however, conclusive, because the evidence may show that in truth and fact they were dealing with these goods as though they were owners dealing with the goods as owners in their own business’); Potter v Customs and Excise Commissioners [1985] STC 45 (where a Tupperware dealer, described as an ‘independent agent operating my own business and not an employee’ of the distributors or of the Tupperware company, was held not to be an agent because he purchased goods from distributors to satisfy the requirements of guests at the dealer's Tupperware parties); Clayton Robard Management Ltd v Siu (1988) 6 ACLC 57 at 59 per Kirby P; BC8701056 (observing that the courts have drawn distinctions between the common use of agency in the business world and its more restricted use in the sense of authority or capacity to create legal relations); Fliway-AFA International Pty Ltd v Australian Trade Commission (1992) 39 FCR 446 at 448; BC9203861 ; per Wilcox J (noting that it is common for the word to be applied to a representative of a company within a particular area, even though he or she has no authority to enter into a contract on behalf of the principal). 26. (1994) ATPR ¶41-326; BC9406592 at 42,310–11. See also Fraser-Ramsay (New Zealand) (Ltd) v De Renzy (1912) 32 NZLR 553 at 575

per Chapman J.

27. As to agents' fiduciary duties see 10.6–10.16, 12.2–12.55. 28. For an example of fiduciary duties stemming from a manufacturer–distributor relationship see Watson v Dolmark Industries [1992] 3 NZLR 311

. Cf Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41

; BC8400480 (but note Mason J's dissent). See further Dal Pont, Equity and Trusts, [4.265]–[4.280]. 29. Fraser-Ramsay (New Zealand) (Ltd) v De Renzy (1912) 32 NZLR 553 at 575

per Chapman J.

Attempts to secure priority

2.6 The distinction between a principal–agent and a vendor–purchaser (or lender–borrower) relationship may also 30. provides an affect priorities in the law of insolvency. Ex parte Bright (1878) 10 Ch D 566 at 570–1 illustration. The case involved the consignment of goods by manufacturers to consignees as ‘agents’ of the manufacturers for their sale. The agents described themselves on both a plate affixed at their place of business and on invoices as ‘merchants and manufacturers' agents’, and acted as agents in that fashion for several other manufacturers. Upon the agents' insolvency, the issue arose as to whether or not they were instead purchasers. The issue was important because, were they in fact agents for sale and not purchasers, then the trustee–in– bankruptcy could not validly claim any unsold goods because these belonged to the manufacturers. The

Page 46 result would be otherwise if no agency existed, in which case the manufacturers would be unsecured creditors in the bankruptcy. The main argument raised by the trustee–in–bankruptcy against a finding of agency focused on the manner in which the ‘agents’ were remunerated. The nature of this argument, and the reasons for its rejection by the English Court of Appeal, were captured in the following extract:31. There is nothing to prevent the principal from remunerating the agent by a commission varying according to the amount of the profit obtained by the sale. A fortiori there is nothing to prevent his paying a commission depending upon the surplus which the agent can obtain over and above the price which will satisfy the principal. The amount of the commission does not turn the agent into a purchaser … It seems to me impossible to say that with such a mode of remuneration the character of the agent can change. But in addition to that we have a great number of other circumstances which shew that

Page 6 of 8 Agency and the Vendor–Purchaser Relationship it was intended to be an agency. In the first place, it is to be noticed that the debtors guarantee all accounts, that is, the agents are to be liable for the purchasers of the goods paying the money, so that the commission is what is called a del credere commission.32. That is wholly inconsistent with the notion that the debtors were the real purchasers, for then they would be guaranteeing themselves; they would be personally liable to pay as purchasers, and what would be the use of guaranteeing payment by themselves?

This finding of an agency relationship led the court to order the trustee–in–bankruptcy to deliver up to the manufacturers goods of theirs that were in the possession of the agents in specie at the commencement of the bankruptcy.33.

30. (1878) 10 Ch D 566. 31. Ex parte Bright (1878) 10 Ch D 566 at 570–1 per Jessel MR, with whom James and Bramwell LJJ agreed (footnote supplied). It cannot be assumed that all persons who are remunerated by way of commission are agents: see, for example, Kitson v P S King and Son (Limited) (1920) 36 TLR 162, where it was held that an arrangement under which the defendant, who was a publisher and bookseller, would publish the plaintiff's book and ‘account’ for all sold copies ‘at the wholesale trade price, less commission of 15 per cent’ constituted ‘a relationship of principals contracting one with the other, not one of principal and agent’: at 164 per Eve J. 32. As to del credere agents see 1.12–1.16. 33. (1878) 10 Ch D 566 at 571 per Jessel MR, at 571–2 per James LJ. See also Re William Watson & Co [1904] 2 KB 753 at 757–9

(CA).

2.7 A different scenario, though again one in which the issue of priority arose, is found in Bruce v Good [1917] NZLR 514 at 535–6 .34. There a cooperative dairy company received from suppliers butter-fat to be manufactured into butter and cheese. As the butter-fat went into the bulk, the identity of each supplier's property was lost. The practice of the cooperative was to consult with suppliers as to the disposal of the manufactured product and then the proceeds of the sale would be distributed among the suppliers after deducting the cost of manufacture. It was argued that the cooperative was an agent of the suppliers, rather than a purchaser from them, so to achieve priority over the claim of the defendant who had guaranteed the cooperative's overdraft and seized the butter. The New Zealand Court of Appeal35. upheld the trial judge's ruling that the transaction was an agency rather than a sale, such that the property in the butter remained in the suppliers. In reaching this conclusion the court was influenced by the fact that the cooperative treated the transaction as an agency, this being evidenced by passages in the cooperative's reports to that end.36. Although the cooperative was invested with wide powers in effecting the sale of the product, the facts were nonetheless inconsistent with the idea of a purchase, namely the consultation of suppliers and the differentiation in the dealing with milk suppliers for local purposes and for sale overseas. That the cooperative had an interest in the product — to get 1d per pound for manufacturing and the ‘overrun’ — did not serve, in the court's opinion, to negative the fact of agency, as this was as consistent with agency as with purchase, if not more so.37. The only persuasive evidence of purchase, according to the court, was the cooperative's

Page 47 control of the manufactured product, but ‘so must an agent for sale have’.38. To this end, their Honours observed that ‘[t]here is nothing inconsistent with the agency relationship in having such a control, but there is an inconsistency with an alleged sale if the purchaser had to consult the suppliers as to the manner in which it was to deal with the products, and this was done and, according to the evidence, had to be done’.39.

Page 7 of 8 Agency and the Vendor–Purchaser Relationship 34. [1917] NZLR 514. 35. Per Stout CJ and Cooper J, Denniston and Chapman JJ dissenting. 36. Bruce v Good [1917] NZLR 514 at 535–6

per Stout CJ and Cooper J.

37. Bruce v Good [1917] NZLR 514 at 535

per Stout CJ and Cooper J.

38. Bruce v Good [1917] NZLR 514 at 536

per Stout CJ and Cooper J.

39. Bruce v Good [1917] NZLR 514 at 537 per Stout CJ and Cooper J. Contra Denniston and Chapman JJ dissenting, who held that the proper legal inference to be made from the fact that the raw material from each supplier had become inextricably mixed with that of the other suppliers was that the property in the bulk passed to the cooperative, and that the cooperative's duty to the suppliers was in contract to pay a sum of money ascertained in the manner agreed. Their Honours considered that such an inference was not affected by the consultation with the suppliers as to the method of disposal, as the cooperative was neither bound to consult them nor to act on their views.

2.8 The foregoing can be contrasted with the outcome in Custom Credit Corporation Ltd v Griffith-Jury Co Pty Ltd.40. The agreement between the plaintiff financier and the defendant motor dealer was that the defendant should act as agent of the plaintiff in the acquisition and disposal of motor vehicles which the defendant was to display in its showroom.It entitled the defendant to draw against funds to be provided by the plaintiff for the purchase of the vehicles, and upon the sale of a vehicle the plaintiff was entitled to be refunded the moneys disbursed for its purchase together with interest, the defendant being entitled to any profit and liable for any loss on the sale. Upon the defendant's insolvency, the plaintiff claimed ownership of the vehicles in the defendant's possession at the date of liquidation. Virtue J rejected the plaintiff's claim, concluding that, notwithstanding the description of the defendant as agent, this was not the substance of the transaction. His Honour justified this conclusion reasoning as follows:41. [T]he contractual rights and liabilities of the [defendant] with regard to the goods are those which are more appropriate to ownership rather than mere agency. The obligation to pay interest on moneys utilized to purchase the chattels, the obligation to defray all charges in relation to the goods, the right to all profits earned by the disposal of the goods and the duty to make up all losses, the lack of concern of the plaintiff with the actual process of marketing and disposal of the goods except to the extent of providing for the refund of moneys disbursed for the purchase of goods and the securing of payment of interest on such moneys, all point to the relationship of money lender and owner rather than principal and agent.

As a result, the plaintiff was not entitled to possession of the vehicles in priority to other creditors, but was simply a creditor itself.

40. [1965] WAR 77. 41. Custom Credit Corporation Ltd v Griffith-Jury Co Pty Ltd [1965] WAR 77 at 79

.

Custom

2.9 Custom, justified by business efficacy, in a particular industry or profession may dictate that persons who on their face act as vendor and purchaser are nonetheless agents acting for principals. The typical example is the stockbroker. Although stockbrokers deal in the market as principals by concluding contracts of purchase and sale in their own name on which they are personally liable to one another, and although their clients do not even know the

Page 8 of 8 Agency and the Vendor–Purchaser Relationship identity of the other broker let alone that of his or her client, the relationship between a broker and client remains that of agent and principal, not of buyer and seller.42.

Page 48

42. E Bailey & Co Ltd v Balholm Securities Ltdat [1973] 2 Lloyd's Rep 404 408 per Kerr J. As to stockbrokers as agents see 1.38.

End of Document

Agency and Trust Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 2: Agency Compared with Other Legal Relationships > Chapter 2 Agency Compared with Other Legal Relationships

Agency and Trust Please click on the link below to download the entire chapter.

Similarities

2.10 The agency relationship has similarities with the trust relationship. Both trustee and agent act in the interests of and for the benefit of another; the trustees for the beneficiary and the agent for the principal. This largely explains why both trustee and agent act in a fiduciary role. Because of the fiduciary character of the relationship, the principal may pursue the process of tracing to recover losses against an agent in circumstances similar to tracing available to a beneficiary of a trust.43. For example, in Seeley v Mercantile Bank of Australia (in liq)44. the defendant carried on the business of estate agent and on behalf of the plaintiff collected rent, which was placed in a separate ‘agency account’. Other money of the defendant was in fact mixed. The Supreme Court of Victoria held that the defendant owed fiduciary duties to the plaintiff, meaning that the money paid in was trust money that the plaintiff was entitled to trace, thereby giving him priority over the defendant's other creditors.

43. As to the process of tracing see Dal Pont, Equity and Trusts, Ch 39. 44. (1892) 18 VLR 485.

2.11 There is also a relationship between agency and constructive trusts. Constructive trusteeship may, for example, be imposed on an agent who profits in breach of fiduciary owed to the principal.45. Similarly, in equity the proceeds of property may be followed by the owner and treated as a fund held upon a constructive trust in his or her favour because the beneficial ownership of the thing gives the owner prima facie an equitable interest in its proceeds.46.

45. See 12.15–12.17, 12.23. 46. Palette Shoes Pty Ltd v Krohn (1937) 58 CLR 1 at 30; BC3700030 NSWLR 382 at 388–9

Distinctions

2.12

per Clarke JA, at 396–7 per Meagher JA.

per Dixon J; Walker v Corboy (1990) 19

Page 2 of 3 Agency and Trust The main distinction between agency and trust is that an agency relationship does not require that the agent be vested with title to the property of the principal at any time during the agency, whereas by definition a trustee holds the legal title to trust property. But an agent who has title to property of his or her principal for the purposes of the agency will be a trustee, albeit one who is bound to follow the directions of the principal with respect to the property.47. This dual office may also arise where there is an understanding that the agent will keep his or her property separate from property obtained on behalf of the principal.48. At the same time, absence of any obligation to keep money or property separate may tell against the creation, not just of a trust, but also an agency relationship.49.

Page 49 There are also other distinctions. An agent acts within the actual or ostensible authority of the principal.50. By contrast, a trustee must follow the directions specified in the trust instrument and is not, as a general rule, subject to the directions of a beneficiary.51. Also, unlike an agent, a trustee contracts as principal and cannot bind beneficiaries unless the trustee enters a contractual obligation to that effect with the beneficiaries.52. However, an agent for an undisclosed principal is not, merely by holding that position, a trustee for the principal vis-Ã -vis the third party with whom the agent contracts on the principal's behalf.53. Agents incur no personal liability where they fully disclose that they act on behalf of a principal if the action is within the scope of their authority, whereas trustees are subject to personal liability for expenses incurred in the management of the trust.54. Both trustees and agents do, however, have a right to be indemnified against expenses incurred personally in carrying out their duties and powers.55. Finally, an agency will be ended by act of either principal or agent or (in the ordinary case) by the death of either party.56. Trusts instead are not generally terminable at the will of the settlor or trustee or by the death of the trustee.57.

47. Owners — Strata Plan No 53441 v Walter Construction Group Ltd (2004) 62 NSWLR 169; [2004] NSWCA 429; BC200408103 at [46] per Spigelman CJ, with whom Ipp and McColl JJA concurred (where, even though the relevant statute adopted the concept of ‘agency’ — in the sense that a body corporate held common property as ‘agent’ for lot owners — the fact that the legislation made clear that the body corporate held only legal title, and that the lot owners held the ‘beneficial interest’ in the common property, made it inappropriate to characterise the statutory role of the body corporate solely in terms of agency); Zen Foundation One Pty Ltd v Sippy Downs Group Pty Ltd [2009] QSC 334; BC200909788 at [81]

per Cullinane J; Georges v Seaborn International Pty Ltd (2012) 288 ALR 240; [2012]

FCA 75; BC201200549 at [277] per Slattery J.

per Gordon J; Parker v Higgins [2012] NSWSC 1516; BC201209588 at [55]

48. Cohen v Cohen (1929) 42 CLR 91; BC2900026 ; Walker v Corboy (1990) 19 NSWLR 382 at 388–90 per Clarke JA, at 396–7 per Meagher JA (cf at 385 per Priestley JA); Stiassny v North Shore City Council [2008] 1 NZLR 825 at [42] [45]

per Harrison J (affd Stiassny v North Shore City Council [2009] 1 NZLR 342; [2008] NZCA 522 at [21] [24]

per William Young P). See further 13.7, 13.8. This is recognised by statute in respect of certain professions whose operations require the holding of clients' moneys, including lawyers and real estate agents: see 13.14–13.16. 49. See, for example, Stiassny v North Shore City Council [2009] 1 NZLR 342; [2008] NZCA 522 Corporation v Savin [1985]2 NZLR 41 at 49

. Cf Westpac Banking

per Richardson J.

50. As to the authority of agents see Pt III. 51. See, for example, Optus Networks Pty Ltd v Horman [2010] VSC 108; BC201001801 (where a contractual arrangement under which a party (CS) was appointed to act as ‘custodian and agent’ for a partnership, was authorised to, hold, enter into and perform any rights under any contracts ‘as a custodian and agent for and on behalf of the partners’, and all the income it received from the business would be received ‘as custodian and agent for and on behalf of the partners absolutely in their proportions’, was held to create an agency rather than a trust relationship in view of the significant contractual powers vested in the partnership to control and direct the activities of CS: at [37]–[40] per Kaye J). 52. Construction Engineering (Aust) Pty Ltd v Hexyl Pty Ltd (1985) 155 CLR 541 at 546; BC8501129

(FC).

Page 3 of 3 Agency and Trust 53. Pople v Evans [1969] 2 Ch 255 19.28–19.47.

at 264

per Ungoed-Thomas J. As to the doctrine of the undisclosed principal see

54. See Jacobs, [2102]. 55. As to an agent's right of indemnity see 18.8–18.20. As to a trustee's right of indemnity see Dal Pont, Equity and Trusts, [23.120]–[23.155]; Jacobs, [2104]–[2116]. 56. As to the termination of agency see Ch 25. 57. See Dal Pont, Equity and Trusts, [21.135], [25.130].

2.13 There are occasions where an agency relationship is inaccurately described in the language of trust. Directors and liquidators of a company, for instance, are sometimes referred to as trustees in respect of the company,58. but this is metaphorical language, intended instead to reflect the fiduciary duties owed by these persons as agents of the company. The point arose in Lombe v Wagga Leagues Club Ltd,59. where the issue was whether a clause in a deed of company arrangement — which required the deed administrators to hold ‘the Deed Fund on trust for the benefit of the Administrators, Deed Administrators and for those Creditors who become Participating Creditors’ — made the administrators trustees.60. The statutory scheme made the administrator the agent of the company, Barrett J noted, and as an agent the administrator obtained no proprietary interest in the funds. In turn, this led his Honour to conclude as follows:61. In the present case, there is specific reference to the ‘Deed Fund’ being held ‘by’ the deed administrators ‘on trust’. Those words did not, in my view, cause the relevant property of the Club to be divested from it and vested in the deed administrators … The statement that they were then to hold that part of the Club's property ‘on trust’ to be applied in certain ways is, in my view, no more than a particular way of emphasising the fiduciary position they occupied in relation to the Club and the trustee-like responsibility they had to apply the relevant part of the Club's property according to the benefits and detriments statutorily created by virtue of the advent of the deed.

Barrett J added that no trust could arise in the circumstances unless the company clearly divested itself of the legal and beneficial interests in its property. Merely because the fund was

Page 50 to be applied by reference to creditors' claims was insufficient to give them beneficial interests in the fund or to justify a conclusion that the deed administrators became the legal owners of the property so as to be capable of holding it on trust.62.

58. See, for example, Re Oriental Inland Steam Co (1874) 9 Ch App 577

; Re Yagerphone Ltd. [1935] 1 Ch 392

59. (2006) 56 ACSR 387; [2006] NSWSC 3; BC200600157. 60. The issue arose because the administrators sought advice and directions from the court under a provision in the trustee legislation available only to trustees: see Dal Pont, Equity and Trusts, [23.170]–[23.185]. 61. Lombe v Wagga Leagues Club Ltd (2006) 56 ACSR 387; [2006] NSWSC 3; BC200600157 at [71]

.

62. Lombe v Wagga Leagues Club Ltd (2006) 56 ACSR 387; [2006] NSWSC 3; BC200600157 at [76]

.

End of Document

Agency and Bailment Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 2: Agency Compared with Other Legal Relationships > Chapter 2 Agency Compared with Other Legal Relationships

Agency and Bailment Please click on the link below to download the entire chapter.

2.14 The common law relationship of bailment arises when a bailor transfers personal property to be held in the possession of a bailee for the bailee's own use or to perform some work for the bailor.63. A bailee has a special interest in the property but not amounting to title, except where specific legislation otherwise provides. The bailee's special interest terminates, and he or she must redeliver the property to the bailor, once the purpose for which the bailment is created has been fulfilled, usually subject to payment by the bailor for the bailee's services. Unlike an agent, a bailee does not ordinarily have power to contract or otherwise represent the bailor, although an agent may, like a bailee, have possession of the principal's property. Agency prima facie gives rise to fiduciary duties,64. which are not as a matter of course attracted by a mere bailment.65.

63. Booth Macdonald & Co Ltd v Hallmond (Official Assignee of) (1913) 33 NZLR 110 at 118 E Palmer, Palmer on Bailment, 3rd ed, Thomson Reuters, London, 2009, pp 1–6.

per Cooper J. See also N

64. See 10.9. 65. This is not to suggest that bailment can never give rise to fiduciary duties: see Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 101–2, 104–6; BC8400480

per Mason J.

2.15 An agent may in some circumstances be a bailee of the principal's goods, this usually being so in the case of a factor. A factor must, by definition, have possession of the principal's goods, and has authority to sell the goods for the principal, usually in the factor's own name.66. Whilst the goods are in the factor's possession, he or she is properly seen as a bailee in the sense that he or she must not deal with the goods other than in the manner prescribed by the bailor (principal), and owes a tortious duty of care in relation to the goods.67. An auctioneer likewise is ordinarily a bailee of the principal's goods.68. Moreover, a person who is a bailee of goods may, in circumstances of necessity, be authorised on the grounds of agency created by operation of law to take steps necessary to protect the goods from destruction or dilapidation.69. Yet even outside circumstances of necessity, a bailee may be impliedly authorised to effect repairs to the chattel at the bailor's expense where to do so is reasonably incidental to the bailee's ordinary use of the chattel.70.

Page 51

Page 2 of 2 Agency and Bailment 66. See 1.23. 67. Pitt Son & Badgery Ltd v Proulefco SA (1984) 153 CLR 644; BC8400515

.

68. As to auctioneers as agents see 1.29. 69. As to this form of agency see 6.2–6.11. 70. See, for example, Tappenden v Artus [1964] 2 QB 185 , involving the repair of a motor vehicle that a motor dealer (the bailor) hired to a prospective purchaser (the bailee).

End of Document

Agent and Stakeholder Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 2: Agency Compared with Other Legal Relationships > Chapter 2 Agency Compared with Other Legal Relationships

Agent and Stakeholder Please click on the link below to download the entire chapter.

2.16 Apart from agreement or statutory provision to the contrary,71. money paid to a person as a stakeholder is not paid to him or her as agent72. or trustee73. as a principal on a contractual or quasi-contractual liability.74. The underlying relationship is one of debtor and creditor, closely analogous to the banker and customer relationship.75. A stakeholder receives and holds money ‘in medio to abide an event’;76. until the event is known, the stakeholder's duty is to hold the money, which translates into a duty to pay it over ‘as soon as it was determined which of the parties was entitled to it’.77. An example is an auctioneer who receives a sum of money that is to be paid in one event to the vendor (if the purchase is completed) and in the other to the purchaser (if the purchase is not completed), in which case the auctioneer holds the money as stakeholder until the occurrence of the event. If the occurrence of the event is disputed, the stakeholder has one of three options: interplead78. and pay the money into court; retain the money pending the resolution of the dispute;79. or take the risk of paying one party.80. If the latter option is chosen, and proves to be a mistake, the stakeholder will be in breach of contract to the other party.

71. The legislation regulating real estate agents (and also some other agents) in the Northern Territory, Tasmania and Victoria specifically provides that money received by an estate as stakeholder is trust money (see Agents Licensing Act 1979 (NT) s 49; Property Agents and Land Transactions Act 2005 (Tas) s 144(1); Estate Agents Act 1980 (Vic) s 59(1)(a)); the same is necessarily inferred in the remaining jurisdictions in view of their broad statutory definition of ‘trust moneys’: see 13.13–13.20. 72. Although there are statements in the case law that a stakeholder holds money as agent for both parties (see, for example, Collins v Stimson (1883) 11 QBD 142

at 144

per Pollock B; Ellis v Goulton [1893] 1 QB 350

at

352 per Lord Esher MR), this represents a loose and inaccurate use of the term ‘agent’: see Hastingwood Property Ltd v Saunders Bearman Anselm (a firm) [1991] Ch 114 at 123 per Edward Nugee QC; Gribbon v Lutton [2002] 2 WLR 842

; [2001] EWCA Civ 1956 at [35]

per Laddie J.

73. Although there are statements in the case law that stakeholders hold money as trustees (presumably for both parties) depending on a contingency (see, for example, Skinner v Trustee of Property of Reed [1967] Ch 1194 at 1200 per Cross J; Burt v Claude Cousins& Co Ltd [1971] 2 QB 426

at 435–6

per Lord Denning MR in dissent;

Lane v Conlan (2004) 28 WAR 337; [2004] WASC 15; BC200400309 at [42] per Pullin J), aside from statute or the creation of an express trust (as to which see, for example, Harmer v Federal Commissioner of Taxation (1991) 173 CLR 264; BC9102626

) this is not, strictly speaking, correct.

74. Potters (a firm) v Loppert [1973] Ch 399

at 406

[2010] SASC 122; BC201002783 at [18] [35]

per Pennycuick VC; Tambakis v Ferluga (2010) 107 SASR 246;

per Gray J.

75. Manzanilla Ltd v Corton Property and Investments Ltd [1996] EWCA Civ 942 (13 November 1996, unreported) per Millett LJ. 76. Lane v Conlan (2004) 28 WAR 337; [2004] WASC 15; BC200400309 at [42]

per Pullin J.

Page 2 of 3 Agent and Stakeholder 77. Harington v Hogart (1830) 1 B & Ad 577 at 592; [1824–34] All ER Rep 471 at 474 per Patterson J. A stakeholder who fails to pay in accordance with a proper demand is liable for interest from the date of the demand: Lee v Munn (1817) 8 Taunt 45; 129 ER 299; Gaby v Driver (1828) 2 Y & J 549; 148 ER 1036. 78. See, for example, Gribbon v Lutton [2002] 2 WLR 842

; [2001] EWCA Civ 1956

.

79. A stakeholder who takes this second course may notify the parties that he or she is content to abide the outcome of the dispute, in which case there is then no need to join the stakeholder in any proceedings taken to resolve it. If the stakeholder is not joined, the court cannot order the money to be paid to the successful party but only declare that the successful party is entitled to give a good receipt for the money: Smith v Hamilton [1951] Ch 175 . 80. Manzanilla Ltd v Corton Property and Investments Ltd [1996] EWCA Civ 942 (13 November 1996, unreported) per Millett LJ.

2.17 Ascertaining the type of relationship created is critical to determining who is entitled to money held pending an event. Where, for instance, a purchaser pays a deposit to a stakeholder in advance of concluding an enforceable contract with the vendor, it remains the purchaser's money, who is entitled to demand its return at any time in advance of an enforceable contract being put in place. In Rayner v Paskell and Cann,81. for instance, the plaintiff advanced money to the defendant estate agents for a deposit ‘subject to contract’, which the agents paid over

Page 52 to the vendor builders. Addressing issues of liability when the builders subsequently went into liquidation, Lord Greene MR stated that:82. [The plaintiff] was entitled to expect the [agents] to hold the money as stakeholders until he entered into a binding contract, and that as this was the usual practice in the case of estate agents who took deposits subject to contract, the [agents] were stakeholders and had wrongfully parted with his money … it must be taken that the [agents] received the money on the terms customary in the profession, whether [the plaintiff] knew of them or not … on the findings of fact the Judge could not do otherwise than hold that the [agents] were under the duty of stakeholders.

81. [1971] 2 QB 439n (originally reported at (1948) 152 EG 270). 82. Rayner v Paskell and Cann [1971] 2 QB 439n 1582

at 441

; Burt v Claude Cousins & Co Ltd [1971] 2 QB 426

Lutton [2002] 2 WLR 842

. See also Maloney v Hardy and Moorshead (1970) 216 EG at 441 per Lord Denning MR (dissenting); Gribbon v

; [2001] EWCA Civ 1956 at [12] [18], [35]

per Laddie J.

2.18 A stakeholder is liable in contract if the money is lost pending the relevant event. The flipside is that, unlike in the case of an agency relationship,83. there is no fiduciary proscription (though there may be a contractual one) on the stakeholder making a profit (for example, interest) from holding the money.84. In Potters (a firm) v Loppert [1973] Ch 399 at 414 85. a dispute arose regarding the entitlement to profit from the investment of a deposit lodged by a prospective purchaser with an estate agent pending the negotiation of the contract. Pennycuick VC noted that it was impossible to suppose ‘that, pending the conclusion of the contract, the stakeholder holds the deposit as a trust estate and then, on conclusion of the contract, that deposit loses that character and the obligation of the stakeholder is transmuted into a contractual obligation to pay a sum of money’.86. As the estate agent could not be characterised as a trustee,87. he could not be made accountable for profit derived from the investment of the

Page 3 of 3 Agent and Stakeholder deposit. Rather, the interest represented not merely a reward for the agent's trouble, ‘but also a recompense for the sterilisation of the property vis-Ã -vis the estate agent during the period between the payment of the deposit and the conclusion of a contract or its breakdown, with the consequences that the agent has no prospect of earning a commission on its sale to any other party so long as the property remains sterilised’.88.

83. See 10.9. 84. Harington v Hogart (1830) 1 B & Ad 577 at 587; [1824–34] All ER Rep 471 at 472 per Lord Tenterden CJ; Christie v Robinson (1907) 4 CLR 1338 at 1362; BC0700051

per Higgins J.

85. [1973] Ch 399. 86. Potters (a firm) v Loppert [1973] Ch 399

at 414

.

87. Cf the argument that the case is better explained on the ground that the agent held the money as trustee, but there was a usage that the agent was entitled to the income in return for his services in holding the deposit: R M Goode, ‘The Right to Trace and its Impact in Commercial Transactions — Part I’ (1976) 92 LQR 360 at 371, n 44. 88. Potters (a firm) v Loppert [1973] Ch 399

End of Document

at 414–15

.

Agency and Employment Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 2: Agency Compared with Other Legal Relationships > Chapter 2 Agency Compared with Other Legal Relationships

Agency and Employment Please click on the link below to download the entire chapter.

Agent compared to employee

2.19 Although on occasion judges refer to employees as being agents89. — and indeed United States law treats employment as a class of agency90. — there is no identity in Australian law between agency and employment, just as there is arguably no identity between employment and fiduciary duties.91. Yet in each case there is an overlap. An employee may or may not be an agent of his or her employer. An employee may or may not owe fiduciary duties,92. and even those who do may not necessarily be agents, although there is likely to be some correlation so far as the latter is concerned.

Page 53 Sales representatives, canvassers and commercial travellers may, for instance, be both agents and employees provided that they exhibit the legal requirements for an employee.93. Whether an employee is an agent rests on whether the employment exhibits the hallmarks of agency. A manager may have the authority to bind the employer contractually, and so may be an agent for this purpose,94. whereas employees lower in the hierarchy lacking this authority may not be agents. Other common indicia of employment — including the employer's control over the employee's functions, the provision by the employer of the relevant resources required for those functions and treatment as an employee of the purposes of associated benefits — may deny a coexisting agency relationship, even if the employee is contractually described as an agent and is remunerated by way of commission.95. Regarding an employer's legal liability for an employee's acts or omissions, there is little need to characterise the employee as an agent because the boundaries of the law of vicarious liability correspond to those of principals' liability for agents' acts or omissions — being whether an act or omission was within the scope of the agency or employment relationship.96.

89. See, for example, Powercor Australia Ltd v Pacific Power [1999] VSC 110; BC9907547 at [1299]

per Gillard J.

90. This is largely because United States agency law focuses heavily on ‘control’ as an element of agency (see 4.13), which is likewise a weighty element in identifying an employment relationship. 91. See Dal Pont, Equity and Trusts, [4.285], [4.290]. 92. See University of Nottingham v Fishel [2000] ICR 1462

at 1490–3

per Elias J.

93. As to the hallmarks of an employment relationship see C Sappideen, P O'Grady, J Riley, G Warburton and B Smith, Macken's Law of Employment, 7th ed, Lawbook Co, Sydney, 2011, Ch 2. 94. See 8.35–8.37. 95. See, for example, Hanna v Imperial Life Assurance Co of Canada [2008] ICR 578 Lord Hope.

; [2007] UKPC 29 at [18] [20] per

Page 2 of 4 Agency and Employment 96. See 22.11–22.18.

2.20 The distinction may be of greater relevance where statute (or, for that matter, the general law) confers upon employees certain rights or entitlements, and the issue is whether what appears to be prima facie an agency relationship coexists with an employment relationship. This may be the case in relation to termination of ‘employment’; statute prescribes the conditions for the lawful termination of an employment relationship,97. of which an agent who is not an employee may not receive the benefit. The need to distinguish between agent and employee may also arise in other cases where statute confers entitlements only on persons who meet the legal definition of an employee. In Australian Mutual Provident Society v Chaplin,98. for example, the statute in question entitled ‘workers’ to long service leave, and the issue was whether the respondent, who had been appointed as a representative of the appellant society, was a ‘worker’ for that purpose. The engagement of the respondent specifically provided that the relationship between the appellant and himself was ‘that of Principal and Agent and not that of Master and Servant’. The Privy Council observed that, in accordance with a substance over form approach,99. such a clause could not have effect if it was inconsistent with the effect of the agreement as a whole. However, a detailed examination of the terms of the parties' agreement justified the conclusion that theirs was a relationship of agency, not of employment. In reaching this conclusion three matters particularly influenced Lord Fraser, who delivered the Board's advice. First, the agreement imposed negative prohibitions on certain practices, in contrast to the detailed positive instructions that would likely characterise an employment relationship. Second, the fact that the respondent was conferred a virtually unlimited power of delegation of the performance of his work to one or more sub-agents made it inconsistent with the contract of personal service inherent in employment. Third, the fact that the respondent was, under the agreement, entitled to incorporate weighed against a finding that he was an employee. There were, however, other clauses in the agreement that, taken by themselves, could have justified the opposite conclusion.100. To overcome this ambiguity, Lord Fraser placed considerable weight on the fact that the parties had themselves expressly denied the relationship employment status.101. It must be noted, however, that judgment focused on why

Page 54 the relationship should not be characterised as an employment relationship, the finding of an agency relationship resulting as a matter of default rather than from any investigation into whether it exhibited the elements of agency.

97. See W B Creighton and A Stewart, Labour Law, 5th ed, Federation Press, Sydney, 2010, Ch 18. 98. (1978) 18 ALR 385. 99. As to which see 1.5, 1.6. 100.For example, cl 5 of the agreement was capable of being read as giving the appellant complete control over the work of the respondent: (1978) 18 ALR 385 at 390. 101.Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385 at 389–90

.

Agent compared to independent contractor

2.21 An agent may or may not be an independent contractor. Agents who carry on an established business in their own right are often independent contractors.102. For example, an insurance broker is an independent contractor who promises to endeavour to achieve a specified result and stipulates for the receipt of a commission if he or she does so.103. Many professional agents, such as solicitors and stockbrokers, are likewise independent contractors.

Page 3 of 4 Agency and Employment

The characterisation in a contract of the parties as independent contractor and ‘employer’ does not preclude agency — a specific provision to the latter effect may, though104. — and so says little about the former's status as an agent.105. In some contexts, in making reference to an independent contractor, judges do, however, use that terminology to describe an outcome inconsistent with agency.106. This latter approach is usually premised on an ‘employer's’ lack of control over an independent contractor and its impact on denying an agency relationship.107. Yet any requirement of control by principal over agent is not to be equated with the control that distinguishes employee from independent contractor.108. Having said that, there may be circumstances whereby an alleged principal has so little control over the activities of an alleged agent as to deny a relationship of agency.109. This is not because the alleged agent is an independent contractor but simply because the relationship does not exhibit the legal characteristics of an agency.

102.Fliway–AFA International Pty Ltd v Australian Trade Commission (1992) 39 FCR 446 at 455; BC9203861 Wilcox J. 103.Erikson v Carr (1945) 46 SR (NSW) 9 at 14 128; BC9502016

per

per Jordan CJ; Henderson v Amadio Pty Ltd (No 1) (1995) 62 FCR 1 at

per Heerey J. As to insurance brokers as agents see 1.34.

104.See, for example, Midcon Oil & Gas Ltd v New British Dominion Oil Co Ltd (1958) 12 DLR (2d) 705

.

105.To this end, the supposed controversy in distinguishing between agent and independent contractor (and employee) has been described as ‘somewhat sterile’: Bowstead, pp 27–8. See, for example, Eurest (Aust) Catering & Services Pty Ltd v International Foods Pty Ltd (2000) 35 ACSR 352 at 360–1; [2000] NSWSC 898; BC200005350 per Hodgson CJ in Eq (where a subsidiary company was held not to be an agent of its holding company, but to be an independent contractor with the holding company). Cf W A Seavey, ‘The Rationale of Agency’ (1920) 29 Yale LJ 859 at 864–7; Fridman, pp 33–7. 106.See, for example, Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 at 69; BC3200006

per Evatt J; Wilson v Darling Island Stevedoring and Lighterage

Company Ltd (1955) 95 CLR 43 at 70; BC5600220 per Fullagar J (‘If A engages B to lay out a garden for him, and B engages C to do the actual work, C is not in any intelligible sense B's agent. B is an independent contractor, and C is either A's servant or an independent contractor with A. Agency in the legal sense simply does not enter into the matter’). Cf Applegate v Moss [1971] 1 QB 407 at 413 per Lord Denning MR. 107.As to ‘control’ as an element of an agency relationship see 4.13. 108.As to the distinction between employee and independent contractor see C Sappideen, P O'Grady, J Riley, G Warburton and B Smith, Macken's Law of Employment, 7th ed, Lawbook Co, Sydney, 2011, pp 26–49. 109.Cf Lower Hutt City v Attorney-General [1965] NZLR 65 at 71 per North P, who noted that it is true to say that in some cases an independent contractor may also be an agent, but added that ‘by and large an independent contractor is entirely independent of any control or interference from the employer and merely undertakes to produce a specified result employing his own means to produce that result. He may use his own discretion in things not specified in the contract’.

2.22 The focus of any inquiry from an agency perspective, therefore, should be whether or not an agent–principal relationship has been created, not whether the relationship involves an independent contractor. It is perhaps most common for the issue to arise where an attempt is made to make a ‘principal’ liable for the defaults of an ‘agent’. As a general principle, vicarious liability operates only within an employment relationship. Therefore, where the relationship between the parties is not one of employer and employee, the way in which a person who engages another — an independent contractor — to perform a service may create liability for

Page 55

Page 4 of 4 Agency and Employment the latter's default as if an agency is created.110. If so, the ‘employer’ is treated as the principal of the independent contractor and may be liable as principal, not vicariously, for the contractor's defaults in the course of the agency.111. The point that whether or not an independent contractor is also an agent depends on the incidents of the relationship in issue is well illustrated in the context of advertising agencies. In CFTO-TV Ltd v Mr Submarine Ltd112. the defendant engaged an advertising agency to arrange advertising with the plaintiff television station. The defendant approved the content and plan of the advertising and set its budget. The defendant paid the agency for the advertising with the plaintiff, but this amount was not then forwarded to the plaintiff as the agency went into bankruptcy. The plaintiff then sought to recover payment directly from the defendant on the ground that the defendant was liable as principal for those moneys. Feldman J, delivering the judgment of the General Division of the Ontario Court, noted that in England the courts have refused to view the relationship between advertising agency and client as creating an agency. The reason for this is that advertising agents, rather than acting as legal agents, are retained to advertise clients' products to the best advantage in the various media available. As a matter of trade custom, the ‘agent’ is a principal in its relations with advertisers and media and so it alone is liable to the media. However, this could not be treated as an inflexible rule, according to his Honour, because the facts in themselves may indicate an agency relationship is intended. In Rodale Press Inc v Webster Industries Ltd and Coast Communications Ltd,113. for example, the advertising agency had only one client — the defendant — who exercised discretion and control over the agency, which was effectively dependent on it and had no independent assets. On these facts, the New Brunswick Queen's Bench Division held that an agency relationship had been intended. On the facts in CFTO, Feldman J was satisfied that an agency relationship existed between the agent and the defendant. What particularly influenced his Honour was the control exercised by the defendant over the agent, in that the defendant approved the total content of the advertising plan and set the budget. Feldman J concluded that ‘the agency is acting as a professional in carrying out its responsibilities and in that sense is an independent contractor; but that does not derogate from its role as agent when it acts on behalf of a client’.114. Hence, the defendant was liable for the accounts in question.

110.Honeywill and Stein Ltd v Larkin Bros Ltd [1934] 1 KB 191

at 196

111.See 22.3. 112.(1994) 108 DLR (4th) 517. 113.(1983) 47 NBR (2d) 328. 114.CFTO-TV Ltd v Mr Submarine Ltd (1994) 108 DLR (4th) 517 at 527.

End of Document

per Slesser LJ.

Agent and Intermediary Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 2: Agency Compared with Other Legal Relationships > Chapter 2 Agency Compared with Other Legal Relationships

Agent and Intermediary Please click on the link below to download the entire chapter.

2.23 The position of a person as an intermediary between two others who deal with one another may or may not mark that person as an agent. Some intermediaries bear the characteristics of agency, albeit usually for the purposes of finding a person willing to transact with the principal rather than having the authority to contract on the principal's behalf. A typical example is a commission agent, who is remunerated by way of commission upon the event of the transaction in question taking place. Even in the latter scenario, agency may not necessarily ensue, some judges distinguishing an agent/broker from a ‘finder’, who is engaged to introduce and bring the parties together, without any obligation or power to negotiate the transaction, in order to earn a finder's fee. The latter may not necessarily be an agent at law, because the finder ‘is charged with no responsibility and is not obligated to exercise any discretion’115. and, as a result, arguably lacks the authority of the kind essential to agency.

Page 56 It follows that not all intermediaries or ‘middlemen’ come within the legal concept of agency. It is clear that facilitating a transaction is not by itself agency,116. nor is agency necessarily synonymous with being an ‘introducer of business’ or the receipt of a commission for a service.117. Beyond any duty or discretion vested in an intermediary, a critical inquiry is whether he or she has been vested with authority to represent the alleged principal for the purposes of soliciting business for it; without such a vesting of authority it is difficult to view the intermediary as an agent at law. The latter point is illustrated in the context of some ‘financial advisors’, who it is alleged act as agents for the relevant institution in which they advise an investor to invest. The allegation is made in an attempt to render that institution liable for any misrepresentations that the advisor may have made in inducing the investment.118. Arguments of this kind have proven difficult to sustain, as they often have also in finance broker cases.119. For example, in NMFM Property Pty Ltd v Citibank Ltd (No 10)120. Lindgren J held that financial advisors were mere introducers of business to the respondent bank (Citibank) and not its agent even if the advisors answered questions in relation to the financial product and conducted all the dealings in relation to the applications including filling out the necessary forms. This was because, inter alia, Citibank maintained a practice of distinguishing between its ‘agents’ and mere introducers of business, carried out no quality control in relation to the information supplied by the advisors to their clients about the product and, importantly, vested in the advisors no authority to represent it or to act for it or on its behalf in soliciting business for it.121. The advisors in NMFM were in essentially the same position as real estate agents, accountants, solicitors and insurance brokers who introduced clients to Citibank; without more, they would not be agents of Citibank, and so could not render Citibank liable for their negligent statements to clients. Lindgren J did not deny that a mere introducer of business could become an agent of Citibank without being appointed in writing — after all, ‘a pattern of informal dealing between Citibank and a particular introducer could establish such an agency regime’122. — but Citibank's clear intention to distinguish mere introducers of business from its appointed agents undermined any such claim on the facts. Such an intention served to deny the consensus necessary to establish an agency relationship with introducers of business.123.

Page 2 of 2 Agent and Intermediary

115.Rauscher Price Refsnes Inc v Great Southwest Savings FA, 923 SW 2d 112 at 115 (Tex App 1996). See also Northeast General Corporation v Wellington Advertising Inc, 624 NE 2d 129 at 131–2 (CA, NY 1993). 116.Quek v Chan [2004] VSC 394; BC200406688 at[149]

per Ashley J.

117.Palandri Wines Ltd v O'Donnell [2002] WASC 123 (S); BC200207491 at [21]

per Bredmeyer M.

118.Pursuant to the principle that renders a principal liable for the defaults of its agents within the scope of the agent's authority conferred on the agent: see 22.1. 119.As to finance broker cases see 1.31–1.33. 120.(2000) 107 FCR 270; [2000] FCA 1558; BC200006827. 121.NMFM Property Pty Ltd v Citibank Ltd (No 10) (2000) 107 FCR 270; [2000] FCA 1558; [544] [562], [1021]

BC200006827 at

.

122.NMFM Property Pty Ltd v Citibank Ltd (No 10) (2000) 107 FCR 270; [2000] FCA 1558; BC200006827 at [1024]

.

123.NMFM Property Pty Ltd v Citibank Ltd (No 10) (2000) 107 FCR 270; [2000] FCA 1558; BC200006827 at [1023]

.

2.24 Another scenario that blurs agent and intermediary status arises in the conduct of electronic auctions conducted via a website (‘e-auctions’, for example eBay), where the auctioneer's main function is to host the website, and thus play a less active role in the auction process than a traditional auctioneer. It is common, in any case, for the terms and conditions of the e-auction site to disclaim any agency relationship — although such a disclaimer is not determinative124. — and maintain that the auctioneer is no more than an intermediary. It is the extent to which the eauction house assumes a more substantial role in the conduct of the auction process, beyond merely hosting the website where the e-auction takes place, that

Page 57 arguably determines the applicability of accepted agency principles.125. As the main reason for seeking to establish agency is to render the auctioneer liable to a purchaser for a vendor's wrongful conduct (such as fraud, misrepresentation, misleading or deceptive conduct, etc), and given the limited avenues that the e-auction house may have to assess the accuracy of the vendor's representations, there are no doubt also policy issues in play here.

124.See 1.5, 1.6. 125.See A Reynolds, ‘E-Auctions: Who will Protect the Consumer?’ (2002) 18 JCL 75 (who argues that Australian courts will find an agency relationship between the e-auction company and the vendor (as principal) where the e-auction house: (i) is involved in payment; (ii) can ‘interfere’ with the vendor's listing (say, the nature or description of the goods); (iii) intercedes in the auction process itself (due to purchaser queries or software errors); (iv) promotes a particular vendor in some way (for example, rewarding a vendor for sustained good feedback from purchasers); (v) states that there is a special relationship with the vendor (for instance, an explicit agency agreement): at 102); Evagora v eBay Australia and New Zealand Pty Ltd [2001] VCAT 49

End of Document

.

Agency and Options Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 2: Agency Compared with Other Legal Relationships > Chapter 2 Agency Compared with Other Legal Relationships

Agency and Options Please click on the link below to download the entire chapter.

2.25 An arm's length agreement granting an option, and the relationship of principal and agent, are two different things. For example, an option–holder has no obligations, fiduciary or otherwise, to the vendor. Nor does the option–holder have power to create legal relationships between the vendor and a third party other than pursuant to a nominee clause in the option agreement itself. The option–holder simply has the right to exercise the option and become a purchaser upon the stipulated terms.126. A useful illustration is Clifton v Johnstone,127. where the plaintiff telegraphed the defendant inquiring: ‘Will you give sole option one week at £8,500 allowing usual commission?’ The defendant replied: ‘Will give you sole option one week at £8,500 for my property, excluding stock, furniture, Xc, which must be bought with premises at valuation’. Salmond J held that the second telegram was an offer of sale, not an appointment of an agent to sell. The plaintiff could not, therefore, claim commission for introducing a third party as purchaser because he had no authority to act as the defendant's agent in the matter, but merely an option to purchase, which he did not exercise.128.

126.Henderson v Amadio Pty Ltd (No 1) (1995) 62 FCR 1 at 129; BC9502016 127.[1921] NZLR 35. 128.Clifton v Johnstone [1921] NZLR 35 at 39

End of Document

.

per Heerey J.

Agency and Corporate Groups Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 2: Agency Compared with Other Legal Relationships > Chapter 2 Agency Compared with Other Legal Relationships

Agency and Corporate Groups Please click on the link below to download the entire chapter.

2.26 The relationship between holding and subsidiary company is not prima facie one of principal and agent; ownership of the subsidiary company by the holding company does not of itself make the former the agent of the latter.129. To this end, it has been observed that ‘the mere fact that a man holds all the shares in a company does not … make the company his agent for the carrying on of the business’, a proposition that ‘is just as true if the shareholder is itself a limited company’.130. That one company controls another may throw some light on the issue of agency but is not decisive;131. a close analysis of all the facts must be made to

Page 58 identify the true relationship.132. The person alleging the agency in such a case must prove it by reference to either an express agreement to that effect (which may not in and of itself be entirely conclusive),133. or to facts from which the proper inference can be made that one company ‘is carrying on the business of the other and on behalf of the other’.134. A chief reason for seeking to establish agency in this context is to attach liability to a company for the acts or omissions of another company within the same group.135. As companies, even those within a group, are separate legal entities, and that a purpose of creating a new corporate entity is usually to separate or distance it from the existing entity,136. only weighty evidence can substantiate an intention to create an agency relationship between the entities. No such evidence was found, for example, in State Bank of Victoria v Parry,137. a case in which the reason for establishing the subsidiary company was as an off-balancesheet company in relation to the holding company, and to this end its accounts and statutory records were kept separately. Nicholson J remarked that a finding that agency was intended would defeat the purpose of having the company off-balance-sheet and would be inconsistent with both companies' accounts and directors' reports and with the documents recording or constituting the transactions into which the subsidiary company entered.138. Similarly, in Briggs v James Hardie & Co Pty Ltd139. Meagher JA held that the subsidiary company's retention of profits from its operations, coupled with its periodic sale of its products to the holding company, were ‘hardly the activities of a mere agent’.

129.Tate v Freecorns Pty Ltd [1972] WAR 204 ; Briggs v James Hardie & Co Pty Ltd (1989) 16 NSWLR 549 at 556 per Meagher JA; Maclaine Watson & Co Ltd v Department of Trade and Industry [1989] Ch 72 at 189–90 per Kerr LJ (affd J H Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418 Maritime Co SA v Avalon Maritime Ltd (The ‘Coral Rose’) (No 1) [1991] 4 All ER 769 at 776 Stocker LJ, at 778–9 per Staughton LJ.

); Atlas

per Neill LJ, at 777 per

130.Smith, Stone and Knight Ltd v Lord Mayor, Aldermen and Citizens of the City of Birmingham [1939] 4 All ER 116 at 120

per Atkinson J.

131.Gramophone & Typewriter Ltd v Stanley [1908] 2 KB 89

.

132.Tate v Freecorns Pty Ltd [1972] WAR 204 at 208 per Burt J, with whom Jackson CJ and Hale J agreed on appeal at 211, 214 respectively (where the court declined to infer a contract of agency from the mere fact that the company

Page 2 of 4 Agency and Corporate Groups whose tort caused the injury to the plaintiff was a wholly owned subsidiary of the defendant, Hale J observing (at 214) that ‘although sociologically it might be desirable for parent companies to be responsible for the acts of and defaults of wholly owned (or effectively owned) subsidiary companies, the authorities preclude its existence’). 133.As to agency created by agreement see Ch 4. 134.Tate v Freecorns Pty Ltd [1972] WAR 204 at 208 211, 214 respectively.

per Burt J, with whom Jackson CJ and Hale J agreed on appeal at

135.As to the liability of a principal for the acts and omissions of his or her agent see generally Pt VI. 136.Peterson Farms Inc v C & M Farming Ltd [2004] 1 Lloyd's Rep 603; [2004]EWHC 21 (Comm) at [62] per Langley J. See, for example, Atlas Maritime Co SA v Avalon Maritime Ltd (The ‘Coral Rose’) (No 1) [1991] 4 All ER 769 at 774 per Neill LJ, where the purpose of the scheme was to avoid the risk that the holding company would be liable for the debts incurred by the subsidiary. 137.(1990) 2 ACSR 15; BC9001332. See also Eurest (Aust) Catering & Services Pty Ltd v International Foods Pty Ltd (2000) 35 ACSR 352 at 360; [2000] NSWSC 898; BC200005350 per Hodgson CJ in Eq (where the fact that holding and subsidiary companies were separate, their businesses and finances being treated separately, was held to deny an agency relationship between them). 138.State Bank of Victoria v Parry (1990) 2 ACSR 15 at 30–1; BC9001332

.

139.(1989) 16 NSWLR 549 at 556.

2.27 The foregoing is not to deny that the parties' intention will be given effect if the evidence clearly shows that the companies intended to create an agency relationship, whether the subsidiary company be the agent or even the principal.However, as many of the cases with outcomes of this kind have targeted the principal's taxation liability for the agent,140. they cannot necessarily be seen as conclusive given the policy issues that underlie taxability.141.

Page 59 A frequently cited case, outside the tax ambit, is Smith, Stone and Knight Ltd v Lord Mayor, Aldermen and Citizens of the City of Birmingham,142. where the question was whether a parent company could recover compensation for removal and disturbance to a business occasioned by the compulsory acquisition of premises at which its subsidiary carried on business. The parent company held, directly or indirectly, all the shares in the subsidiary company and its profits were treated as the profits of the parent company. Atkinson J held that the subsidiary company operated as an agent on behalf of its parent, and formulated six questions relevant to the issue of whether the subsidiary was carrying on the company's business or its own: 1. Were the profits of the business treated as the profits of the parent company? 2. Were the persons conducting the business appointed by the company? 3. Was the parent company the head and brain of the trading venture? 4. Did the parent company govern the adventure, decide what should be done and what capital should be embarked on the venture? 5. Did the parent company make the profits by its skill and direction? 6. Was the parent company in effectual and constant control? Although the first question identifies an issue that is important to the question whether there is an agency, too great an emphasis on the remaining five inquiries could lead to a result inconsistent with the separate entity principle enunciated in Salomon v A Salomon & Co Ltd.143. Each of these inquiries relates in some way to control, and yet control per se is not ordinarily decisive of agency.144. An agency between a parent company and its subsidiary, or between a sole shareholder and his or her company, would otherwise often arise, which is inconsistent with both Salomon and High Court authority that recognises the separate legal existence of companies in a group.145. So although Smith, Stone and Knight has been applied or referred to without disapproval in Australia,146. the balance of authority indicates that it does not provide a definitive test of agency.147.

Page 3 of 4 Agency and Corporate Groups The points in the preceding paragraph were concisely made by Besanko J in ACN 007 528 207 Pty Ltd (in liq) v Bird Cameron (2005) 91 SASR 570; [2005] SASC 204; BC200503824 at [123], [132] ,148. which serves as a useful recent illustration of the curial reticence to find an agency relationship within a corporate group. There the defendant firm licensed BPM Ltd to operate an accountancy practice under the trading name ‘Bird Cameron’. The plaintiff, a client of the firm who became a client of BPM, suffered loss in transactions

Page 60 effected through BPM. It sued the firm (and BPM), arguing that BPM conducted its practice as agent for the firm. Besanko J rejected this argument, ruling that no agency relationship existed for two main reasons.149. First, the evidence showed that the firm, in entering into the licensing agreement, did so for ‘good commercial purposes’ that could not be achieved by appointing BPM as its agent. Second, the nature of BPM's operations revealed that this was not a case where BPM was conducting the firm's business for the firm's benefit (as in Smith, Stone and Knight); rather, BPM retained revenue and profits generated from its practice. That members of the firm were the directors and shareholders of BPM — and in that sense controlled BPM — did not alter his Honour's view, reasoning that ‘cannot be enough of itself to establish agency between the members of the firm and BPM’.150. The case shows that control by shareholders and complete unity of shareholders and management are insufficient to both lift the corporate veil and to establish an agency relationship.151.

140.See, for example, San Paulo (Brazilian) Railway Co v Carter [1896] AC 31 ; Jones (Frank) Brewing Co v Apthorpe (1898) 4 TC 6; St Louis Breweries Ltd v Apthorpe (1898) 79 LT 551; Apthorpe v Peter Schoenhofen Brewing Co Ltd (1899) 80 LT 395 ; Gramophone & Typewriter Ltd v Stanley [1908] 2 KB 89 at 95–6 per CozensHardy MR; Chief Executive of New Zealand Customs Service v Nike New Zealand Ltd [2004]1 NZLR 238; [2003] NZCA 218

.

141.Cf Dennis Wilcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 at 274 per Jenkinson J, with whom Woodward and Foster JJ concurred (‘Neither the circumstance that a company is completely subject to the ownership and the direction of another person, nor the circumstance that that other person exercised a directorial control of the activities of the company in ways which minimise the manifestations of the company's separate legal identity will justify … a conclusion that acts in the law formally done by the company are to be regarded, for the purposes of the kind here in question in relation to Australian income tax law, as acts in the law done by that other person’); State Bank of Victoria v Parry (1990) 2 ACSR 15 at 31; BC9001332

per Nicholson J.

142.[1939] 4 All ER 116. 143.[1897] AC 22. 144.See 4.13. 145.Walker v Wimborne (1976) 137 CLR 1 at 6–7 BC7700100

per Mason J; Industrial Equity Ltd v Blackburn (1977) 137 CLR 567;

; Premier Building and Consulting Pty Ltd v Spotless Group Ltd (2007) 64 ACSR 114; [2007] VSC 377;

BC200708532 at [333]

per Byrne J.

146.See, for example, Griffiths Hughes Pty Ltd v Federal Commissioner of Taxation (1951) 84 CLR 13 at 19; BC5100210 ; per Williams J; Hotel Terrigal Pty Ltd (in liq) v Latec Investments Ltd (No 2) [1969] 1 NSWR 676 (mortgagee's sale of security to a subsidiary); Wanless v Brisbane City Council (1987) 11 QLCR 252 (compensation claim); (1990) 94 ALR 679 at 710–11; BC9003471 per Sheppard J (misleading and deceptive conduct by subsidiary); Linfa Pty Ltd v Citibank Ltd [1995] 1 VR 643 at 649; BC9300695

per Hedigan J (discovery of subsidiary's documents); Century

Medical Inc v THLD Ltd [1999] NSWSC 731; BC9904254

(application for extension of time for discovery).

147.See, for example, Maclaine Watson & Co Ltd v Department of Trade and Industry [1989] Ch 72

at 189

per Kerr

LJ (affd J H Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418 ) (who remarked that the facts in Smith, Stone and Knight were so unusual as to be unable to form any basis of principle); Briggs v James Hardie & Co Pty Ltd (1989) 16 NSWLR 549 at 569–76 Parry (1990) 2 ACSR 15 at 30–1;

BC9001332

Subiaco (1998) 19 WAR 440 at 451–2; BC9802506 FCR 1; [2002] FCA 243; BC200200786 at [69]

per Rogers AJA; State Bank of Victoria v

per Nicholson J; Heytesbury Holdings Pty Ltd v City of per Steytler J; Bray v F Hoffmann-La Roche Ltd (2002) 118

per Merkel J; Premier Building and Consulting Pty Ltd v Spotless

Page 4 of 4 Agency and Corporate Groups Group Ltd (2007) 64 ACSR 114; [2007] VSC 377; BC200708532 at [333] [338] per Byrne J. See J Harris, ‘Lifting the Corporate Veil on the Basis of an Implied Agency: A Re-evaluation of Smith, Stone and Knight’ (2005) 23 C&SLJ 7. 148.(2005) 91 SASR 570; [2005] SASC 204; BC200503824 at [110], [111]. 149.ACN 007 528 207 Pty Ltd (in liq) v Bird Cameron (2005) 91 SASR 570; [2005] SASC 204; [123], [132]

BC200503824 at

.

150.ACN 007 528 207 Pty Ltd (in liq) v Bird Cameron (2005) 91 SASR 570; [2005] SASC 204; BC200503824 at [139] . See also South Sydney District Rugby League Football Club Ltd v News Ltd (2000) 177 ALR 611; [2000] FCA 1541; BC200006604 at [137]

per Finn J (affd on a different point: News Ltd v South Sydney District Rugby League

Football Club Ltd (2003) 215 CLR 563; [2003] HCA 45; BC200304465 ). In the United States, where the element of control assumes greater significance to proof of an agency relationship than in Australia (see 4.13), the courts have struggled to explain how much control is required before parent and subsidiary are deemed principal and agent. In Transamerica Leasing Inc v La Republica de Venezuela, 200 F 3d 843 at 849 (DC Cir 2000) it was noted, though, that ‘the relationship of principal and agent does not obtain unless the parent has manifested its desire for the subsidiary to act upon the parent's behalf, the subsidiary has consented so to act, the parent has the right to exercise control over the subsidiary with respect to matters entrusted to the subsidiary, and the parent exercises its control in a manner more direct than by voting a majority of the stock in the subsidiary or making appointments to the subsidiary's Board of Directors’. 151.A Hargovan and J Harris, ‘The Relevance of Control in Establishing an Implied Agency Relationship Between a Company and its Owners’ (2005) 23 C&SLJ 459 at 463.

End of Document

Agent and Amanuensis Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 2: Agency Compared with Other Legal Relationships > Chapter 2 Agency Compared with Other Legal Relationships

Agent and Amanuensis Please click on the link below to download the entire chapter.

2.28 An amanuensis is a person who performs a clerical or administrative role, such as the taking of dictation or the copying of text, as between his or her appointor and a third party.152. Where a person is an amanuensis, the appointor is taken to act on his or her own behalf in the transaction, not via any agent. However, a person can, by filling out a form on behalf of another person, become an agent of that person or, alternatively, the agent of the person to whom the form is to be submitted, assuming the elements of agency are established. A typical example of the latter relates to an insurance application form completed by the agent of the insurer, or a canvasser who can properly be characterised as an agent of the insurer, such that the insurer is liable for a misrepresentation by the agent or canvasser of which the applicant has no knowledge.153.

152.Maye v Colonial Mutual Life Assurance Society Ltd (1924) 35 CLR 14 at 30 153.See 22.25–22.29.

End of Document

per Isaacs ACJ.

Chapter 3 Capacity Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 3: Capacity Page 61

Chapter 3 Capacity [Current to September 2013] Please click on the link below to download the entire chapter. Capacity to Appoint an Agent

3.2

Individuals

3.2

Companies

3.4

Capacity to Act as an Agent

3.5

General rule

3.5

Fulfilment of formality requirements

3.7

Statutory incapacity

3.8

Agents required to be licensed

3.9

Licensing of real estate agents

3.10

Licensing of finance brokers

3.11

Licensing of stockbrokers

3.12

Licensing of insurance brokers

3.14

Licensing of other agents

3.15

Capacity to Delegate Functions to an Agent

3.16

General rule

3.16

Personal contracts

3.17

Statute requires personal act

3.18

Statutory requirements for signature

3.19

The formalities of an agent's signature

3.24

Personal acts other than signature

3.26

Limits or restrictions on appointment of agent

3.28

Page 2 of 2 Chapter 3 Capacity

3.1 Issues of capacity in the law of agency centre on three main points: the capacity to appoint an agent, the capacity to act as an agent, and the capacity to delegate functions to an agent. Each is discussed in turn in this chapter.

Page 62

End of Document

Capacity to Appoint an Agent Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 3: Capacity > Chapter 3 Capacity

Capacity to Appoint an Agent Please click on the link below to download the entire chapter.

Individuals

3.2 At general law certain classes of persons are incompetent or have only a limited capacity to contract.1. These persons — which include minors,2. insane persons3. and intoxicated persons4. — may be unable validly to appoint an agent. The guiding notion is that a principal's capacity to appoint an agent is coextensive with his or her own capacity to contract, at least where the agency is created by contract.5. A principal's capacity is central to a relationship of agency because the agent's actions affect the principal's legal position.6. Insane and intoxicated persons have no capacity to contract except in moments of lucidity or sobriety and so cannot appoint an agent, although this will not affect the validity of any purported appointment so far as the agent or a third party is concerned if the agent or third party lacked knowledge of the principal's incapacity.7. If the agent knew or should have known of the principal's incapacity, though, the agent lacks authority to act on the principal's behalf.8. Third parties without knowledge of a principal's incapacity can rely on an agency document that is legitimate on its face, without querying the issue of capacity.9. An existing agency relationship can operate whilst the principal lacks mental capacity if it constitutes a valid enduring power of attorney.10. However, enduring powers of attorney must, in any event, be executed at a time when the principal possessed full mental capacity.11.

1.

On the issue of capacity to contract see generally Carter, Ch 15.

2.

Statute defines minors as persons below 18 years of age: Age of Majority Act 1974 (ACT) s 5; Minors (Property and Contracts) Act 1970 (NSW) s 6(1); Age of Majority Act 1974 (NT) s 4; Law Reform Act 1995 (Qld) s 17; Age of Majority (Reduction) Act 1971 (SA) s 3; Age of Majority Act 1973 (Tas) s 3; Age of Majority Act 1977 (Vic) s 3; Age of Majority Act 1972 (WA) s 5.

3.

Gibbons v Wright (1954) 91 CLR 423 at 444–5; BC5400600

4.

Blomley v Ryan (1956) 99 CLR 362; BC5600790

5.

This need not be the case, at least in the context of minors, in relation to non-contractual agencies, as to which see 4.14–4.20.

6.

Restatement (3d) §3.04, Comment b.

7.

Imperial Loan Co v Stone [1892] 1 QB 599 pp 42–3.

8.

Goddard Elliott (a firm) v Fritsch [2012] VSC 87; BC201201151 at [549] per Bell J (in the context of a lawyer who failed to properly ascertain the client's mental capacity to give instructions, his Honour adding that ‘[t]he lawyer's authority can only ever occupy that range which is marked out by the client's mental capacity’, which ‘authority must end where that capacity ends’: at [550]).

per Dixon CJ, Kitto and Taylor JJ.

.

; Taylor v Walker [1958] 1 Lloyd's Rep 490 at 514. Cf Bowstead,

Page 2 of 3 Capacity to Appoint an Agent 9.

Scott v Scott (2012) 7 ASTLR 299; [2012] NSWSC 1541; BC201210837 at [238] per Lindsay J (in the context of powers of attorney, his Honour remarking that ‘the practical utility of a power of attorney would be severely diminished if, in all cases or even most, a donee were required to prove that the donor had the requisite mental capacity to grant it’, and adding (at [239]) that such a conclusion is reinforced, in the case of an enduring power of attorney, by the witnessing and certification requirements imposed by statute in this instance: see generally Dal Pont, Powers of Attorney, Ch 4).

10. See 1.30. 11. See Dal Pont, Powers of Attorney, [3.2]–[3.44].

3.3 Where it is possible for a minor to lawfully bind himself or herself by a particular contract because it is for his or her benefit, the minor has the power to lawfully appoint an agent to do so on the minor's behalf.12. Statute in New South Wales provides that a person aged under 21 years may appoint an agent by power of attorney or otherwise and may, by an agent, participate in any civil act13. and otherwise do or suffer that which a person aged 21 years or more may participate in or do or suffer by an agent.14. In that a contract made by a minor is unenforceable

Page 63 unless ratified by the minor upon or subsequent to attaining the age of majority,15. it may be appropriate for the minor, or his or her parent or guardian, to seek the court's assistance to appoint a person to transact any specified business, or business of a specified class, or to execute documents, on the minor's behalf.16. In such a case, liabilities incurred by the minor's agent in the course of acting for the minor are enforceable against the minor.17.

12. G v G [1970] 2 QB 643 at 652 per Lord Denning MR (although on the facts the English Court of Appeal found there to be admissible evidence of an agency relationship). See further P R H Webb, ‘The Capacity of the Infant to Appoint an Agent’ (1955) 18 MLR 461. 13. ‘Civil act’ is defined in the Minors (Property and Contracts) Act 1970 (NSW) s 6 and includes a contract and a disposition of property, but not the making of a will. 14. Minors (Property and Contracts) Act 1970 (NSW) s 46(1). However, a civil act in which a minor participates by an agent and anything that a minor does or suffers by an agent has no greater validity or effect as against the minor than it would if participated in or done or suffered by the minor without an agent: s 46(2). 15. Feagles v Sullivan, 32 Pa D&C 47 at 53 (Pa Com Pl 1938); Sabourin v LBC Inc, 731 F Supp 1151 at 1155 (DRI 1990); Minors Contracts (Miscellaneous Provisions) Act 1979 (SA) s 4 (which requires any ratification to be in writing). 16. This is specifically provided for by the Minors Contracts (Miscellaneous Provisions) Act 1979 (SA) s 8(1). 17. Minors Contracts (Miscellaneous Provisions) Act 1979 (SA) s 8(2).

Companies

3.4 Whereas prior to the statutory abolition of the doctrine of ultra vires companies could be restricted, so far as third parties were concerned, by the terms of their memorandum of association from having capacity to do certain acts,18. now companies registered under the Corporations Act 2001 (Cth) have the legal capacity and powers of an individual.19. Even though a company's constitution may expressly restrict or prohibit the exercise of any of the powers of an individual, a transaction inconsistent with this restriction or prohibition is not invalid so far as third parties are concerned.20. Thus, companies so registered enjoy power to appoint agents for any purpose fettered only by any statutory restrictions. A company in liquidation cannot appoint or employ agents capable of binding the corporation as principal,21.

Page 3 of 3 Capacity to Appoint an Agent although statute does permit a liquidator to ‘appoint an agent to do any business that the liquidator is unable to do, or that it is unreasonable to expect the liquidator to do, in person’.22.

18. See, for example, Ashbury Railway Carriage and Iron Co Ltd v Riche (1875) LR 7 HL 653. 19. Corporations Act 2001 (Cth) s 124. 20. Corporations Act 2001 (Cth) s 125. 21. Gosling v Gaskell [1897] AC 575

at 587–8 per Lord Watson.

22. Corporations Act 2001 (Cth) s 477(2)(k). See also s 477(2)(b), which empowers a liquidator to appoint a solicitor to assist the liquidator in his or her duties.

End of Document

Capacity to Act as an Agent Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 3: Capacity > Chapter 3 Capacity

Capacity to Act as an Agent Please click on the link below to download the entire chapter.

General rule

3.5 Any person of sound mind has the legal capacity to act as an agent provided that he or she has sufficient understanding to consent to the agency23. and to perform the act(s) required.24. The capacity of an agent is not limited to his or her capacity to act as a principal.25. What this dictates is that an agent who lacks capacity at law to contract as a principal — on the grounds, say, of infancy — may nonetheless bind the principal by effecting a contract for the principal

Page 64 within his or her actual or ostensible authority.26. For the same reason, an agent who cannot read may bind by his or her signature a principal who can read.27. Yet in such cases the agent cannot be personally liable under that contract because of the agent's incapacity at law to effect it on his or her own behalf.28.

23. As to the requirement of consent to the creation of an agency see 4.4–4.11. 24. Watkins v Vince (1818) 2 Stark 368; 171 ER 675; Re D'Angibau at 244 per Brett LJ, at 246 per James LJ. In New South Wales, this is recognised by statute in the context of minors: Minors (Property and Contracts) Act 1970 (NSW) s 46(3) (which provides that a person may, by an agent under the age of 21 years, participate in any civil act, and otherwise do or suffer anything which a person may participate in or do or suffer by an agent aged 21 years or more). Case authority that a minor cannot act in respect of real property pursuant to a power of attorney (Hearle v Greenbank (1749) 3 Atk 695; 26 ER 1200 ) must now be queried given its antiquity and subsequent attempts by courts to limit it: see, for example, Re D'Angibau at 246 per James LJ; contra at 240 per Cotton LJ in dissent. 25. As to the capacity to act as a principal see 3.2–3.4. 26. Waugh v Waugh (1950) 50 SR (NSW) 210 at 211 per Street CJ. See, for example, Watkins v Vince (1818) 2 Stark 368; 171 ER 675 (where a guarantee was given as to the payment for the supply of bricks by a minor on behalf of his father, Lord Ellenborough held that, in view of evidence that the son had on other occasions signed documents on his father's behalf, the father was liable on the guarantee through the agency of his son); Goode v Harrison (1821) 5 B & Ald 147; 106 ER 1147 (a partner who is a minor can bind the partnership in respect of acts done in furtherance of the objects of the partnership). As to the authority of agents see Pt III. 27. Foreman v Great Western Railway Co (1878) 38 LT 851

.

28. Smally v Smally (1700) 1 Eq Cas Abr 6; 21 ER 83 (where it was held that an agent who was a minor could not be charged on a contract). Circumstances where an agent may be personally liable in contract are discussed in Ch 23.

3.6

Page 2 of 7 Capacity to Act as an Agent A person is not rendered incapable of acting as an agent for a party to a transaction merely because the person also acts as agent for another party to that transaction. Yet in circumstances where this representation gives rise to a conflict of interest between the agent's duties to each principal, as will be so in most instances of this kind, the agent must not continue to act without the consent of each principal.29.

29. As to agent–principal conflicts of interest see 12.21–12.40.

Fulfilment of formality requirements

3.7 Where statute requires that, whether as a prerequisite to its validity or enforceability, a contract be in writing signed by the parties or their agents,30. a person who contracts as principal cannot act as agent for the other party to the contract in order to satisfy these statutory signature requirements.31. To hold otherwise would be inconsistent with the object of these requirements, for it would make it easier for the signatory to perpetrate fraud. There is no objection in law, however, to the same person acting as agent for both parties for the purpose of signature requirements.32. An example is in the case of an auctioneer,33. who has authority to sign the requisite memorandum of sale on behalf of both the vendor and the successful bidder.34.

30. Such as, for example, the legislation in each jurisdiction that replicates the English Statute of Frauds 1677 writing requirements in respect of contracts for the sale of land: Civil Law (Property) Act 2006 (ACT) s 204; Conveyancing Act 1919 (NSW) s 54A; Law of Property Act 2000 (NT) s 62; Property Law Act 1974 (Qld) s 59; Law of Property Act 1936 (SA) s 26(1); Conveyancing and Law of Property Act 1884 (Tas) s 36; Instruments Act 1958 (Vic) s 126; WA: Statute of Frauds 1677 (Imp) s 4. 31. Wright v Dannah (1809) 2 Camp 203; 170 ER 1129; Farebrother v Simmons (1822) 5 B & Ald 333; 106 ER 1213; Sharman v Brandt (1871) LR 6 QB 720 . 32. Ordinarily, however, agents cannot act for both parties to a transaction, as this constitutes a breach of fiduciary duty: see 12.41–12.46. 33. It is not, however, limited to that scenario. It can be the case where a sale is made by a broker, such that the same person is authorised by each party to act as his or her agent: see, for example, Thompson v Gardiner (1876) 1 CPD 777. 34. See 8.19–8.22.

Statutory incapacity

3.8 Statute may deny certain persons in certain contexts the capacity to act as agents. This is usually on the grounds of age or prior conduct. For instance, in the Australian Capital Territory, an adult must not, by a power of attorney, appoint a child as an attorney.35. In Queensland and Victoria an agent (or donee) under an enduring power of attorney must be at least 18 years old.36. Also, the legislation in each jurisdiction regulating real estate agents and auctioneers

Page 65 (and also certain other agents in some jurisdictions) as a general rule provides for requirements of integrity, education and experience as a precondition to acting in that capacity.37.

Page 3 of 7 Capacity to Act as an Agent

35. Powers of Attorney Act 2006 (ACT) s 13(3). As to powers of attorney see 1.30. 36. Powers of Attorney Act 1998 (Qld) s 29(1)(a)(i) (definition of ‘eligible attorney’); Instruments Act 1958 (Vic) s 119(4). As to enduring powers of attorney see 1.30. 37. Agents Act 2003 (ACT) ss 24–27; Agents Regulation 2003 (ACT) reg 6 (applies in respect of business agents, employment agents, real estate agents, stock and station agents and travel agents); Agents Licensing Act 1979 (NT) ss 20, 22(1) (applies to real estate agents, business agents and conveyancing agents); Auctioneers Act 1935 (NT) s 7(2); Property Agents and Motor Dealers Act 2000 (Qld) ss 35 (resident letting agent), 36 (real estate agent), 37–40 (pastoral houses), 41 (auctioneer), 42, 43 (property developers), 44 (motor dealers), 45 (commercial agents); Land Agents Act 1994 (SA) s 8; Property Agents and Land Transactions Act 2005 (Tas) ss 64–67 (real estate agents, property managers, general auctioneers); Estate Agents Act 1980 (Vic) s 14; Real Estate and Business Agents Act 1978 (WA) s 27(1).

Agents required to be licensed

3.9 Statute requires certain persons who act as agents to be registered or licensed for that purpose and imposes sanctions (usually criminal sanctions) for acting without being so registered or licensed. This point relates directly to capacity, because the statute essentially deems an unlicensed person to be incapable of acting as an agent.

Licensing of real estate agents

3.10 Legislation in all jurisdictions requires a person who seeks to carry on business as a real estate agent to be licensed according to the statutory requirements.38. These requirements impose conditions of eligibility to becoming an estate agent, and in so doing are directed to maintaining integrity in the conduct of real estate business. To this end, the legislation provides that disciplinary sanctions, including the revocation of the licence, can be imposed upon licensees.39. In some jurisdictions statute makes it an offence for a person to use the title ‘agent’ unless he or she is licensed for that purpose.40. In all jurisdictions statutory provision is also made for the registration of, or at least the eligibility to become, a salesperson to be employed by a real estate agent.41. In all jurisdictions except South Australia, the legislation provides that no person is entitled to sue to recover any commission, fee, gain or reward for any service performed by that person as a real estate agent unless he or she was licensed at the time of providing that service.42.

38. Agents Act 2003 (ACT) s 18; Property, Stock and Business Agents Act 2002 (NSW) ss 8, 14, 15; Agents Licensing Act 1979 (NT) ss 17, 18, 22–25A; Property Agents and Motor Dealers Act 2000 (Qld) s 160; Land Agents Act 1994 (SA) ss 6–8; Property Agents and Land Transactions Act 2005 (Tas) ss 5, 6; Estate Agents Act 1980 (Vic) ss 12, 14, 15; Real Estate and Business Agents Act 1978 (WA) s 26. 39. Agents Act 2003 (ACT) ss 40–43; Property, Stock and Business Agents Act 2002 (NSW) Pt 12; Agents Licensing Act 1979 (NT) ss 66–70; Property Agents and Motor Dealers Act 2000 (Qld) ss 74, 75, 496–500; Land Agents Act 1994 (SA) s 42–48; Property Agents and Land Transactions Act 2005 (Tas) Pt 6; Estate Agents Act 1980 (Vic) ss 22, 29; Real Estate and Business Agents Act 1978 (WA) ss 101–106. 40. Agents Licensing Act 1979 (NT) s 114; Estate Agents Act 1980 (Vic) s 38. 41. Agents Act 2003 (ACT) ss 44–63; Property, Stock and Business Agents Act 2002 (NSW) ss 10, 11, 14–16; Agents Licensing Act 1979 (NT) ss 33–48; Property Agents and Motor Dealers Act 2000 (Qld) ss 82–110; Land Agents Act 1994 (SA) ss 6A, 8A, 8B; Property Agents and Land Transactions Act 2005 (Tas) ss 10, 17B; Property Agents and Land Transactions Regulations 2006 (Tas) reg 42(2); Estate Agents Act 1980 (Vic) s 16; Real Estate and Business Agents Act 1978 (WA) Pt IV ss 42–55.

Page 4 of 7 Capacity to Act as an Agent 42. Agents Act 2003 (ACT) s 23; Property, Stock and Business Agents Act 2002 (NSW) s 8(2); Agents Licensing Act 1979 (NT) s 121; Property Agents and Motor Dealers Act 2000 (Qld) s 140(1)(a); Property Agents and Land Transactions Act 2005 (Tas) ss 21(1) (real estate agents), 55(1) (general auctioneers); Estate Agents Act 1980 (Vic) s 50(1)(a); Real Estate and Business Agents Act 1978 (WA) s 60(1). As to agents' remuneration see Chs 15–17.

Licensing of finance brokers

3.11 The National Consumer Credit Protection Act 2009 (Cth) Ch 2, with effect on 1 July 2011, provides for the licensing of persons who engage in credit activities.43. It prohibits

Page 66 a person who does not hold an Australian credit licence44. from engaging in a credit activity.45. A person engages in a ‘credit activity’ if, inter alia, he or she performs the obligations, or exercises the rights, of a credit provider or mortgagee in relation to a (proposed) credit contract or mortgage, including on behalf of the credit provider or mortgagee.46. Accordingly, those who carry on the business, broadly speaking, of finance broking must be properly licensed for this purpose.

43. The national licensing regime replaces licensing provisions formerly in the Australian Capital Territory, New South Wales, Victoria and Western Australia, and gives effect to recommendations that finance broking should be uniformly licensed: see S Wallis, Financial System Inquiry Final Report, 1997, pp 245, 254, 293; J Hockley, ‘Mortgage Brokers in Western Australia: Royal Commission into the Finance Broking Industry: Commissioner Ian Temby QC’ (2001) 9 APLJ 238. 44. The issue of Australian credit licences is governed by National Consumer Credit Protection Act 2009 (Cth) Pt 2-2. 45. National Consumer Credit Protection Act 2009 (Cth) s 29(1). Breach of the prohibition can sound in a civil penalty and/or imprisonment. 46. National Consumer Credit Protection Act 2009 (Cth) s 6, items 1(c), 4(b).

Licensing of stockbrokers

3.12 The national financial services licensing regime established by the Corporations Act 2001 (Cth) Ch 7 requires a person who carries on a business providing financial services to ‘hold an Australian financial services licence covering the provision of the financial services’.47. A person provides a ‘financial service’ if he or she, inter alia, deals in a financial product, makes a market for a financial product, or provides financial product advice.48. A ‘financial product’ is a facility through which a person makes a financial investment, manages financial risk or makes non-cash payments.49. ‘Financial product advice’ means a recommendation or a statement of opinion that is intended to influence a person in making a decision in relation to a financial product, or that could reasonably be regarded as being intended to have such an influence.50. In view of the above definitions, it is clear that persons who carry on business as stockbrokers must hold an Australian financial services licence.51. To be granted a licence an applicant must meet various requirements set by statute, including a requirement of good fame and character.52. It is an offence for a person to use the title ‘stockbroker’ or ‘sharebroker’, or any other word of like import, in carrying on a financial services business or providing a financial service unless he or she is authorised under an Australian financial services licence to use that title.53.

Page 5 of 7 Capacity to Act as an Agent 47. Corporations Act 2001 (Cth) s 911A(1). 48. Corporations Act 2001 (Cth) s 766A(1)(a)–(c). 49. Corporations Act 2001 (Cth) s 763A(1). 50. Corporations Act 2001 (Cth) s 766B(1). 51. See generally Baxt, Black and Hanrahan, Ch 13. 52. Corporations Act 2001 (Cth) s 913B. 53. Corporations Act 2001 (Cth) ss 923B, 1311(1).

3.13 If an unlicensed person, in the course of a financial services business, enters into an agreement with a client that relates to the provision of a financial service, the client may furnish a written notice to the unlicensed person stating that the client wishes to rescind the agreement.54. This notice effects a rescission of the agreement unless the client was informed that the person was unlicensed before entering into the agreement,55. the client affirmed the agreement,56. or the rescission would prejudice a right or an estate in property acquired by a third party in good faith for valuable consideration without notice of the facts entitling the client to give the notice.57. In the latter event, the client may be entitled to a partial rescission by order of the court.58. Where the agreement is rescinded, the unlicensed person cannot enforce it against the client59. or recover commission in respect of it.60. Any commission already paid is recoverable by the client.61.

Page 67

54. Corporations Act 2001 (Cth) s 925A(1). 55. Corporations Act 2001 (Cth) s 925A(4). 56. Corporations Act 2001 (Cth) s 925A(3). 57. Corporations Act 2001 (Cth) s 925B. 58. Corporations Act 2001 (Cth) s 925C. 59. Corporations Act 2001 (Cth) s 925E. 60. Corporations Act 2001 (Cth) s 925F. 61. Corporations Act 2001 (Cth) s 925H.

Licensing of insurance brokers

3.14 A person cannot carry on business as an insurance broker unless he or she is licensed under the financial services regime.62. For the purposes of insurance broking, ‘financial product’, with some exceptions, is a contract of insurance, a life policy or a sinking fund policy.63. As in the case of stockbrokers, an applicant must meet various requirements set by statute, including a requirement of good fame and character.64. Likewise, it is an offence for a person to use the title ‘insurance broker’, or any other word(s) of like import, in carrying on a financial services business or providing a financial service unless he or she is authorised under an Australian financial services licence to use that title.65.

Page 6 of 7 Capacity to Act as an Agent

62. Namely under the Corporations Act 2001 (Cth) Pt 7.6. 63. Corporations Act 2001 (Cth) s 764A(1)(d)–(f). 64. Corporations Act 2001 (Cth) s 913B. 65. Corporations Act 2001 (Cth) ss 923B, 1311(1).

Licensing of other agents

3.15 In the Australian Capital Territory the legislation regulating the licensing of real estate agents also imposes licensing requirements in respect of stock and station agents, business agents, travel agents and employment agents.66. In New South Wales that legislation imposes, inter alia, licensing requirements on stock and station agents, business agents, strata managing agents, community managing agents and on-site residential property managers.67. In the Northern Territory it requires the licensing of business agents and conveyancing agents,68. and in Queensland resident letting agents, pastoral houses, property developers, commercial agents, motor dealers and auctioneers must be licensed.69. The legislation governing real estate agents in the Australian Capital Territory, New South Wales, Queensland, South Australia, Tasmania and Victoria makes provision, whether explicitly or implicitly, for the licensing of auctioneers.70. In the remaining jurisdictions the licensing of auctioneers is prescribed by legislation specific to auctioneers.71. In New South Wales, specific legislation requires persons who carry on business as commercial agents and private inquiry agents to be licensed.72. Legislation in the Northern Territory licenses commercial agents and inquiry agents.73. In South Australia investigation agents and security agents must be licensed,74. as must security agents, inquiry agents and crowd control agents

Page 68 in Tasmania and Western Australia.75. In Tasmania the same legislation licenses commercial agents. South Australia and Western Australia have also enacted legislation specifically to provide, inter alia, for the licensing of employment agents.76. Western Australia requires settlement agents to be licensed.77. In all jurisdictions statute makes it an offence for a person to carry on business as a travel agent unless he or she is licensed.78. And federal legislation proscribes a person carrying on business as a migration agent79. or a tax agent80. without fulfilling registration requirements.

66. Each of these types of agent is defined for the purposes of the legislation: see Agents Act 2003 (ACT) ss 9 (stock and station agent), 10 (business agent), 11 (travel agent), 12 (employment agent). As to the licensing of these agents see ss 16–43. 67. Each of these types of agent is defined for the purposes of the legislation: see Property, Stock and Business Agents Act 2002 (NSW) s 3(1). 68. Each of these types of agent is defined for the purposes of the legislation: see Agents Licensing Act 1979 (NT) s 5(2). 69. Each of these types of agent is defined for the purposes of the legislation: see Property Agents and Motor Dealers Act 2000 (Qld) ss 111(1) (resident letting agent), 165(1) (pastoral house), 205(1) (auctioneer), 262(1) (property developer), 279(1) (motor dealer), 339(1) (commercial agent). As to the licensing of these agents see Ch 2 (ss 20–81). 70. Agents Act 2003 (ACT) ss 8, 18 (definition of ‘real estate agent’ in s 8 implicitly includes the sale of land by auction); Property, Stock and Business Agents Act 2002 (NSW) Pt 2 (see in this context the definitions of ‘real estate agent’ and ‘stock and station agent’ in s 3(1), both of which include sale by auction); Auctioneers and Agents Act 1971 (Qld) ss 39–44; Land Agents Act 1994 (SA) ss 6B (requirement that auctioneers be registered), 8C (entitlement to be registered); Property Agents and Land Transactions Act 2005 (Tas) ss 33, 57; Estate Agents Act 1980 (Vic) s 13B (and Pt 3 generally) (see definition of ‘estate agent’ and ‘sell’ in s 4(1)). 71. Auctioneers Act 1935 (NT) ss 4–9, 18; Auction Sales Act 1973 (WA) ss 6–22.

Page 7 of 7 Capacity to Act as an Agent 72. Commercial Agents and Private Inquiry Agents Act 2004 (NSW) ss 5, 11 (and see Commercial Agents and Private Inquiry Agents Regulation 2006 (NSW) Pt 2). ‘Commercial agent’ and ‘private inquiry agent’ are defined in s 4(1). 73. Commercial and Private Agents Licensing Act 1979 (NT) Pt 2 (the legislation makes it an offence for unlicensed persons to act as commercial or private agents: s 5; ‘commercial agent’ and ‘inquiry agent’ are defined in s 3). 74. Security and Investigation Agents Act 1995 (SA) s 6(1). ‘Investigation agent’ and ‘security agent’ are defined in s 3. 75. Security and Investigations Agents Act 2002 (Tas) Pt 2 (‘commercial agent’, ‘crowd control agent’, ‘security agent’ and ‘inquiry agent’ are defined in s 3); Security and Related Activities (Control) Act 1996 (WA) ss 15 (security agents), 29 (inquiry agents), 36 (crowd control agents) (each of these types of agents is defined for the purposes of the legislation: see ss 11 (security agents), 27 (inquiry agents), 34 (crowd control agents); licensing procedures are prescribed in ss 43–74). 76. Employment Agents Registration Act 1993 (SA) Pt 2 (the requirement to be licensed being prescribed in s 6; the term ‘employment agent’ is defined in s 3); Employment Agents Act 1976 (WA) ss 12–27 (the requirement to be licensed being prescribed in s 12; the term ‘employment agent’ is defined in s 5). 77. Settlement Agents Act 1981 (WA) Pt II (the requirement to be licensed being prescribed in s 26). 78. Agents Act 2003 (ACT) s 21; Consumer Affairs and Fair Trading Act 1990 (NT) s 188(1); Travel Agents Act 1986 (NSW) s 6(1); Travel Agents Act 1988 (Qld) s 12(1), 12(2); Travel Agents Act 1986 (SA) s 7(1), 7(2); Travel Agents Act 1987 (Tas) s 18(1), 18(2); Travel Agents Act 1986 (Vic) s 6(1); Travel Agents Act 1985 (WA) s 7(1). 79. Migration Act 1958 (Cth) Pt 3 Div 3. 80. Tax Agent Services Act 2009 (Cth) s 50.5.

End of Document

Capacity to Delegate Functions to an Agent Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 3: Capacity > Chapter 3 Capacity

Capacity to Delegate Functions to an Agent Please click on the link below to download the entire chapter.

General rule

3.16 The fundamental freedom of individuals of full capacity to appoint an agent for any legal purpose, whether in respect of the exercise of a statutory right or any other right,81. is recognised in the common law rule expressed in the maxim qui facit per alium facit per se, namely that ‘what a person may do himself, he may do by an agent’.82. The same notion is replicated by statute in most jurisdictions in the context of powers of attorney, which provides that a power of attorney confers on the donee authority to do on behalf of the donor anything the donor may lawfully do by an attorney.83. The general rule is subject to three main exceptions: first, where the principal is denied by contract the right to appoint an agent to perform; second, where statute requires that an act be done by a principal, and not an agent; and third, where the general law or statute does not prohibit but rather restricts the purposes for which a principal may appoint an agent. Each exception is discussed below in turn.

81. Jackson & Co v Napper (1886) 35 Ch D 162

at 172 per Stirling J.

82. J M Christie v Permewan, Wright & Co Ltd (1904) 1 CLR 693 at 700; BC0400015 Laundry Pty Ltd v Patmoy [1961] NSWR 499

per Griffith CJ. See also Wilson's

at 501 per Ferguson J; Deputy Commissioner of Taxation v

Boxshall (1988) 83 ALR 175 at 178 (FC(FCA)). Cf Cleary v Sloan [1943] NZLR 307 at 310 per Myers CJ, at 313–14 per Johnston J (who appeared to adopt a less robust presumption, in following Re Prince Blücher [1931] 2 Ch 70 , but as that decision has been subsequently disapproved (see n 100), this approach must be treated with suspicion). 83. Powers of Attorney Act 2006 (ACT) s 13(1); Powers of Attorney Act 1998 (Qld) s 8; Powers of Attorney and Agency Act 1984 (SA) s 5(3); Powers of Attorney Act 2000 (Tas) ss 20, 31; Instruments Act 1958 (Vic) s 107(1). As to powers of attorney see 1.30.

Personal contracts

3.17 If a power or authority is conferred or a duty imposed by an instrument or agreement on a principal personally, and its exercise or performance involves discretion or skill, the principal cannot lawfully appoint an agent for that purpose.84. As observed by Lord Macnaghten in the context of contracts, ‘[t]here are contracts … which are not to be performed vicariously’ in which there is ‘an element of personal skill or an element of personal confidence to which, for

Page 69

Page 2 of 13 Capacity to Delegate Functions to an Agent the purposes of the contract, a stranger cannot make any pretensions’.85. A contract of this kind, termed a ‘personal contract’, is one that entitles one party to an actual performance of it by the other party personally; non-personal performance is a breach of contract.86. To determine whether a person may appoint an agent to exercise a right or power, reference must be made to the terms of the instrument or agreement, construed in their context, coupled with the purpose of the instrument or agreement and that of the right or power. So in the absence of an express provision to the contrary, such a right or power may be inferred from the terms of the contract applied to its subject matter and the circumstances of the parties.87. Stirling LJ stated the general principle in the following terms in Bevan v Webb:88. I agree that when the right which is to be exercised is conferred by some written instrument, as, for example, either by a statute incorporated in a partnership contract or by the articles of partnership, it may be that, upon the true construction of the instrument, it is found that the intention of the parties was that the right of inspection should be a personal right; but, unless you can find something of that nature in the instrument itself, you are not entitled to say that, because an agent is not expressly mentioned, the exercise of the right by an agent is excluded.

The nature of the office held by the principal may of itself deny an ability to delegate to an agent. A power of attorney cannot, for example, authorise the exercise of any power or the performance of any duty or function conferred or imposed on the principal as trustee,89. because trusteeship is at general law a personal obligation incapable of delegation.90.

84. R v Burchill and Salway [1947] St R Qd 249

at 253 per Macrossan CJ.

85. Tolhurst v Associated Portland Cement Manufacturers (1900) Ltd[1903] AC 414 at 417. The presence of a clause excluding or limiting the liability of a party for breach of contract or negligence has been held to brand the contract as a personal contract: Davies v Collins [1945] 1 All ER 247 (this being explained on the grounds that the risk the plaintiff undertakes is broadened if the contract is not personal to the defendant). 86. Davies v Collins [1945] 1 All ER 247

at 249 per Lord Greene MR.

87. Bruce v Tyley (1916) 21 CLR 277 at 289; BC1600042 88. [1901] 2 Ch 59

at 78

per Isaacs J.

(emphasis supplied).

89. Powers of Attorney Act 2003 (NSW) s 10 (see Belfield v Belfield (2012) 16 BPR 31,177; [2012]NSWCA 416; BC201209897 at [67] per Campbell JA, with whom Sackville AJA concurred, who ruled that ‘as’ in this context means ‘because the person occupies the office of trustee’ rather than ‘in the same way in which a trustee would act’); Powers of Attorney and Agency Act 1984 (SA) s 5(4) (see Re Estate of Dudley (deceased) (2013) 115 SASR 328; [2013] SASC 22; BC201309027 at [17] per Gray J, who opined that this restriction is limited to general powers of attorney and does not extend to enduring powers of attorney); Instruments Act 1958 (Vic) s 107(2), 107(3). These provisions in any event reflect the general law. 90. See Dal Pont, Equity and Trusts, [22.45]; Jacobs, [1723].

Statute requires personal act

3.18 If statute requires a person to execute an act personally, that person is not permitted to appoint an agent to execute the act. Any such legislative intention, in that it interferes with a common law right, must stem from express enactment or necessary implication.91. As it is in the context of statutory requirements for signature that this matter has witnessed greatest curial attention, most of the following discussion focuses on this topic. Yet the issue can also arise outside of the signature scenario, and so the discussion concludes with illustrations of the courts' approach in that context.

Page 3 of 13 Capacity to Delegate Functions to an Agent

91. Jackson & Co v Napper (1886) 35 Ch D 162 Railways (1946) 46 SR (NSW) 430

at 172–3 per Stirling J; Grahame v Commissioner for

at 438 per Davidson J.

Statutory requirements for signature

3.19 The issue is whether a statutory signature requirement can be satisfied only by personal signing, or also by the signature of an agent. The courts have approached this issue as a question of construction;92. the outcome in each case must accordingly depend on the words of the statute construed in their context as a whole and the purpose to which the statute is directed. Certainly

Page 70 the court starts from the standpoint that reflects the above maxim, adopting a presumption that ‘where a person authorises another to sign for him, the signature of the person so signing is the signature of the person authorising it’.93. The rule is justified by commercial convenience, efficacy and practice. As agency is an indispensable part of modern society, the case law attaches considerable strength to the legal presumption. It has been observed that ‘[t]he conduct of business or, indeed, society generally would not be facilitated by the creation of a substantial body of exceptions to the general presumption’.94. The rationale for the rule was well stated by Story, in his classic treatise on the law of agency, as follows:95. In the expanded intercourse of modern society it is easy to perceive, that the exigencies of trade and commerce, the urgent pressure of professional, official, and other pursuits, the temporary existence of personal illness or infirmity, the necessity of transacting business at the same time in various and remote places, and the importance of securing accuracy, skill, ability, and speed in the accomplishment of the great concerns of human life, must require the aid and assistance and labours of many persons, in addition to the immediate superintendence of him, whose rights and interests are to be directly affected by the results. Hence the general maxim of our laws, subject only to a few exceptions above hinted at, is, that whatever a man sui juris may do of himself, he may do by another.

It may even be that a person authorised to sign on behalf of another can also sign, in his or her own personal capacity, as a witness for this purpose where statute requires witnessing of the signature,96. though this outcome does seem to undermine the usual mischief to which witnessing is directed.

92. Re Whitley Partners Ltd (1886) 32 Ch D 337 Boxshall (1988) 83 ALR 175 at 93 per Kearney J.

at 178 (FC(FCA)); Colmup Pty Ltd v Mecair Engineering Pty Ltd (1988) 93 FLR 91

93. R v Justices of Kent (1873) LR 8 QB 305 162

at 340 per Bowen LJ; Deputy Commissioner of Taxation v

at 307 per Blackburn J. See also Jackson & Co v Napper (1886) 35 Ch D

at 173 per Stirling J; Wilson's Laundry Pty Ltd v Patmoy [1961] NSWR 499

94. Vincent v Johnstone Shire Council [1997] 1 Qd R 554 at 557; BC9507160

at 501 per Ferguson J.

per Dowsett J.

95. C P Greenough, Story on Agency, 9th ed, Little, Brown, Boston, 1882, p 2. 96. See, for example, Dundalk AFC Interim Co Ltd v FAI National League [2001] 1 IR 434 (where Finnegan J remarked that although a party to a document cannot be a witness to his or her own signature, this does not preclude him or her legitimately witnessing the signature he or she has made not in his or her own personal capacity but legitimately in the

Page 4 of 13 Capacity to Delegate Functions to an Agent capacity as agent for the principal, adding (at 439) that ‘[i]t is not uncommon for a person who signs a deed in one capacity to witness the signature of another party to the deed and this practice has never been found to be ineffective’).

3.20 Judges are loath to restrict the common law qui facit per alium facit per se rule ‘unless the Statute makes a personal signature indispensable’.97. The issue therefore relates to those statutory words that, in their context, evidence a statutory intention to displace the prima facie common law rule. Where the statute itself envisages signature ‘in the name of’ a person, this implies that signature can be effected by an agent of that person provided that it is in that person's name.98. Moreover, the rule is not excluded merely by a statutory provision requiring that a document, in order to be effected, be signed by a particular person; otherwise the common law rule would have little scope or need for operation.99. So if the statute is silent on the matter of personal signature, a person ‘has the same right of appointing an agent for the

Page 71 purpose of exercising a statutory right as for any other purpose’.100. Had the legislature intended that signature be personal, the law reasons, it could have so provided.101. Where the statute is silent, if the person authorises another to sign on his or her behalf, a signature made by the other pursuant to the authority is equivalent to the signature of the person giving the authority.102. For example, in a leading case, Re Whitley Partners Ltd,103. statute requiring the memorandum of association of a company to ‘be signed by each subscriber in the presence of, and attested by, one witness at the least’104. was held by the English Court of Appeal not to preclude signature by an agent. Cotton LJ stated: ‘[I]t would be wrong to hold that an enactment simply referring to signature is not satisfied by signature by means of an agent’.105. In McRae v Coulton106. the same outcome followed in respect of a statutory requirement that ‘signatures by all applicants’ be appended to an application form for the grant of an authority.107. Hope JA found nothing in the language or context of the legislation (or its regulations) to oust the operation of the general principle or require personal signature. The application was thus not invalid for having been signed by solicitors for the applicants.108.

97. R v Justices of Kent (1873) LR 8 QB 305 98. R v Burchill and Salway [1947] St R Qd 249

at 307 per Quain J. See also at 307 per Archibald J. at 253–4 per Macrossan CJ, at 259 per Philp J.

99. Grahame v Commissioner for Railways (1946) 46 SR (NSW) 430 100.Jackson & Co v Napper (1886) 35 Ch D 162

at 435 per Jordan CJ.

at 173 per Stirling J. See also Vincent v Johnstone Shire

Council [1997] 1 Qd R 554 at 558; BC9507160 per Dowsett J. Contra Re Prince Blücher where it was held that the Bankruptcy Act 1914 (UK) s 16, which required a proposal for a scheme of composition by a debtor in satisfaction of debts to be ‘in writing signed by him’, necessitated personal signature. The English Court of Appeal reasoned that the words ‘signed by’ required a personal signature, and that any other conclusion would amount to an amendment of the legislation. Yet even though the court purported to apply Re Whitley (1886) 32 Ch D 337 in support of this conclusion, Re Prince Blücher [1931] 2 Ch 70 , held precisely the opposite. Hence, it has been said that Re Prince Blücher should not be regarded as disturbing the long line of authority to the contrary: Grahame v Commissioner for Railways (1946) 46 SR (NSW) 430

at 435 per Jordan CJ; McRae v Coulton (1986) 7 NSWLR

644 at 664 per Hope JA. Moreover, in Vincent v Johnstone Shire Council at 557 Dowsett J considered that, at the very best, Blücher may be a case in which the context demonstrated an intention that the general rule not apply; at worst, the decision should thereafter be treated as wrong. The Privy Council has since expressed the view that Blücher was wrongly decided: General Legal Council Ex parte Whitter v Frankson [2006] 1 WLR 2803 ; [2006] UKPC 42

at [7]. Cf Cleary v Sloan [1943] NZLR 307

at 310 per Myers CJ, at 313–14 per Johnston J (who

purported to follow Re Prince Blücher); Deputy Commissioner of Taxation v Boxshall (1988) 83 ALR 175 80 (FC(FCA)) (where Re Prince Blücher was distinguished). 101.R v Burchill and Salway [1947] St R Qd 249

at 254 per Macrossan CJ.

at 179–

Page 5 of 13 Capacity to Delegate Functions to an Agent 102.R v Justices of Kent (1873) LR 8 QB 305 Railways (1946) 46 SR (NSW) 430

; Halligan v Mitchell [1941] VLR 240

; Grahame v Commissioner for

at 435 per Jordan CJ, at 438 per Davidson J; Scobie & Glover Engineering Pty

Ltd v Scobie (2004) 13 Tas R 189; [2004] TASSC 116; BC200407055 at [7]––[13] per Underwood J; Cordiant Communications (Australia) Pty Ltd v Communications Group Holdings Pty Ltd (2005) 194 FLR 322; [2005] NSWSC 1005; BC200507646 1936; BC200811393

at [31]–[33] per Palmer J; Lofthouse (Trustee) v Stirling (2008) 173 FCR 574; [2008]FCA at [26] per Heerey J.

103.(1886) 32 Ch D 337

.

104.Companies Act 1862 (Imp) ss 6, 11 (repealed). 105.Re Whitley Partners Ltd (1886) 32 Ch D 337 106.(1986) 7 NSWLR 644

at 339–40.

.

107.Under the Water Act 1912 (NSW) s 20(2). 108.McRae v Coulton (1986) 7 NSWLR 644

at 664. See also Vincent v Johnstone Shire Council [1997] 1 Qd R 554;

BC9507160 , where Dowsett J held that the Local Government (Planning and Environment) Act 1990 (Qld) s 4.3(9)(a) (repealed), which requires an objection to be ‘in writing and signed by each person who makes the objection’, could be satisfied by the signature of an authorised agent. His Honour found nothing in the Act that demonstrated an intention to depart from the general presumption: at 558.

3.21 A legislative intention that a personal signature is required may appear from the language of the statute, whether from the express words or by necessary implication, or from its context and subject matter.109. Clearly, if the terms of the legislation expressly provide that the signature (or other act) of a person must be effected by that person and no other, there is no

Page 72 room for the common law presumption to operate.Effect will be given to the clear statutory intent. Where, for example, statute requires that an instrument be ‘made and signed personally by the borrower’, this is usually sufficient to oust the general law rule110. because it is difficult to explain or understand what other useful purpose the word ‘personally’ could serve.111. Even if the statute contains no such express statement, the context of the signature (or other) requirement may indicate that a personal signature or act is required. For example, there is authority that where the terms of other provisions in the statute or in cognate legislation expressly authorise signature by agents, this may serve to preclude the application of the qui facit per alium facit per se rule where no such provision is made.112. The logic for this appears to be that, if the legislators intended that personal signature be required in certain contexts, the same should be given effect to in like contexts even though no words to that effect exist. Yet the same factual scenario could support precisely the opposite conclusion, in that if some provisions in a statute require personal signature whereas others do not, there are strong grounds for holding that the legislature meant for the latter case to come within, not outside, the general law presumption. The subject matter of the statute in question may also influence a judgment as to what parliament intended. In this respect, the court will not overlook the likely impracticality of requiring a personal signature to inform its assessment of that intention. The point is illustrated by the High Court's decision in O'Reilly v Commissioners of the State Bank of Victoria.113. In dispute, inter alia, was the validity of a notice issued by the Federal Commissioner of Taxation under the Income Tax Assessment Act 1936 (Cth) s 264.The commissioner had delegated his power to issue s 264 notices to deputy commissioners, and the notices in question bore a facsimile of the signature of a deputy commissioner stamped on them by a chief investigating officer of the Australian Taxation Office. Gibbs CJ, with whom Murphy and Wilson JJ agreed on this point, noted that whether the statute requires the power to be exercised personally by the person designated ‘depends on the nature of the power and all the circumstances of the case’.114. In that s 264 gave the commissioner powers exercisable ‘in myriads of cases’, his Honour reasoned that ‘it would reduce the administration of taxation laws to chaos if the powers conferred by those sections could be

Page 6 of 13 Capacity to Delegate Functions to an Agent exercised only by the Commissioner or a Deputy Commissioner personally’.115. Therefore, the powers conferred by s 264 were not intended to be exercised only by the commissioner but could be exercised through a properly authorised officer.

109.Jackson & Co v Napper (1886) 35 Ch D 162 Railways (1946) 46 SR (NSW) 430 NSWLR 644

at 172–3 per Stirling J; Grahame v Commissioner for

at 435 per Jordan CJ, at 438 per Davidson J; McRae v Coulton (1986) 7

at 663 per Hope JA.

110.R v Justices of Kent (1873) LR 8 QB 305 Whitley Partners Ltd (1886) 32 Ch D 337 575–6 per O'Connor J.

at 307 per Blackburn J; Swift v Jewsbury (1874) LR 9 QB 901

; Re

at 340 per Bowen LJ; Thomson v McInnes (1911) 12 CLR 562

at

111.Motel Marine Pty Ltd v IAC Finance Pty Ltd (1964) 110 CLR 9; BC6400080 . This case involved the (now repealed) Lending of Money Act 1915 (Tas) s 13(1)(a), which required that a note or memorandum of a contract for the repayment of a loan to be ‘made and signed personally by the borrower’. The issue was whether the statute applied where the borrower was a body corporate. Dixon CJ held that an incorporated company could not sign anything personally, and so concluded that the statutory signature requirement was not directed at the protection of companies: at 12–13. Kitto, Taylor and Owen JJ were likewise unable to reconcile the use of the expression ‘signed personally by the borrower’ with an intention to include in the word ‘borrower’ other than a natural person: at 13. Contra at 19–20 per Menzies J in dissent. 112.Hyde v Johnson (1836) 2 Bing (NC) 776; 132 ER 299, cited as authority for this proposition in McRae v Coulton (1986) 7 NSWLR 644

at 663 per Hope JA. See also Grahame v Commissioner for Railways (1946) 46 SR (NSW) 430

at 435 per Jordan CJ; Oswal v Burrup Holdings Ltd (2011) 281 ALR 432; [2011] FCA 609; (discussed at 3.30). 113.(1983) 153 CLR 1

BC201103663

.

114.O'Reilly v Commissioners of the State Bank of Victoria (1983) 153 CLR 1

at 11.

115.O'Reilly v Commissioners of the State Bank of Victoria (1983) 153 CLR 1

at 12.

3.22 Merely because the terms of the statute in question provide for alternative signatories does not carry any necessary implication to oust the general law presumption. The matter remains one of ascertaining the intention of the legislature, in that express provision for alternative signatories may, in view of the object of the legislation, serve a purpose other than

Page 73 to mandate personal signature. The issue arose in Grahame v Commissioner for Railways,116. where the legislation in issue117. required a special contract for the carriage of goods to be signed by the consignor or by the person delivering the goods for carriage. It was held that, by prescribing alternative signatories, it was ‘much more likely that the intention was to avoid disputes as to the authority of the agent to sign, than to depart from the general rule that a consignor might act by an agent, especially having regard to the huge number of carriage contracts that no doubt were contemplated when the legislation was passed’.118.

116.(1946) 46 SR (NSW) 430

.

117.Namely the Common Carriers Act 1902 (NSW) s 9(c).

Page 7 of 13 Capacity to Delegate Functions to an Agent 118.Grahame v Commissioner for Railways (1946) 46 SR (NSW) 430 also at 435–6 per Jordan CJ.

at 439 per Davidson J (emphasis supplied). See

3.23 The evident purpose of the statute, when coupled with its terms, may nonetheless indicate an intention to mandate personal signature. For example, in Cleary v Sloan119. statute prohibited an hotel licensee from selling liquor to a lodger at a time when the licensed premises were required to be closed ‘except in accordance with a written order signed by the lodger setting out the particulars of the liquor ordered by him’.120. The Full Court of the Supreme Court of New Zealand held that this mandated personal signature. Myers CJ explained:121. The regulations under consideration here are a matter purely of policing the regulation of licensed premises and the traffic in intoxicating liquors at a time of national emergency. To construe the requirement as to the lodger's signature in any other way than as meaning his personal signature would, in my opinion, be inconsistent with the drastic [prohibitory] provisions … and would tend to nullify the effect of those provisions … The present case, having regard to the evident object of the enactment and the mischief that might result from a contrary interpretation, is … a [strong] case for insisting upon adherence to the plain words of the enactment and holding that there must be the personal signature of the lodger.

119.[1943] NZLR 307

.

120.Licensing Act Emergency Regulations 1942 (NZ) reg 3(4) (repealed). 121.Cleary v Sloan [1943] NZLR 307

at 311. See also at 312 per Blair J, at 313–14 per Johnston J.

The formalities of an agent's signature

3.24 The formalities that attach to signature by an agent, where this is permissible, depend upon the terms of the statute. If those terms expressly provide for a signature in a particular form, effect must be given to the statutory intention. Where, for example, the statute provides that a signature must be effected ‘in the name of’ the principal, the agent cannot sign personally but only in the name of and on behalf of the principal.122. Much of the case law, however, deals with signature requirements that prescribe no detail as to the formalities of an agent's signature. The issue in these cases concerns whether the validity of the agent's signature rests on the agent signing the principal's name in the capacity as agent, or whether it is sufficient for the agent to sign his or her name as agent for the principal.

122.R v Burchill and Salway [1947] St R Qd 249

3.25

at 254–5 per Macrossan CJ.

Page 8 of 13 Capacity to Delegate Functions to an Agent The courts have, generally speaking,123. adopted an approach that places substance over form and have, to this end, held that the requirements of signature by an agent are satisfied whether the agent signs his or her own name or the principal's name provided in each case

Page 74 that the signature is effected as agent.124. In McRae v Coulton125. Hope JA rejected any such distinction as bordering on sophistry, explaining the matter by way of example: On this view if Richard Roe wished to sign as agent for John Doe, he can sign John Doe by his agent Richard Roe, but he cannot sign Richard Roe as agent for John Doe. This distinction seems to take literalism to its extreme and I would have little hesitation in rejecting it in the absence of authority to support it.

In McRae v Coulton an issue was whether a statutory requirement of signatures ‘by all applicants’ dictated that an agent signing must sign the principal's name, albeit in his or her capacity as agent for the principal. The New South Wales Court of Appeal rejected such a requirement, Hope JA reasoning as follows:126. The terms of the statute or other regulating instrument may make it clear that an agent must place his principal's name before his own. To suggest that what he does is to place his principal's signature first is of course false because the principal's signature does not appear at all; what appears, if this practice were adopted, would be the writing by the agent of the name of his principal before the writing of his signature. No authority seems to suggest that what the agent writes must be a copy of the principal's signature or in the same form as the principal's signature; thus, if the principal, John Doe, signs his name ‘J Doe’, it is not suggested that a signature by an agent writing ‘John Doe’ in full by himself as agent would not be sufficient … I would accordingly doubt very much the inflexibility of any principle that where a statute or other instrument requires a signature but a signature by an agent is permitted by the principle I have discussed, the agent must first write his principal's name. In other situations, it is of course common for agents to sign on behalf of their principals in much the same way as was done in the present case, and there are countless decisions as to whether, having regard to the way in which the agent has signed, the agent can be made personally liable127. … The distinction between what is submitted is required and what was done is purely one of form and not of substance, and in my opinion is an example of the type of technicality which should not invade this important aspect of rural activity in New South Wales.

Hence, it must be made clear that the signature is on behalf of the principal, by, for example, writing the principal's name with or without the further subscription ‘pp’ and the name of the agent. In either case, the agent is asserting authority to sign. The same effect is achieved by the agent signing his or her own name and asserting that he or she signs as agent for the principal.128.

123.In McRae v Coulton (1986) 7 NSWLR 644

at 664 Hope JA expressed the view that London County Council v

Agricultural Food Products [1955] 2 QB 218 was inconsistent with the proposition cited in the text. However, his Honour queried whether the distinction propounded in that case was inflexible in view of UBAF Ltd v European American Banking Corporation [1984] QB 713 , which supports the view that an agent's signature on behalf of a company, not purporting to be the signature of the company by the agent, will satisfy the requirement of the statute that the representation be signed by the person to be charged. In Vincent v Johnstone Shire Council [1997] 1 Qd R 554 at 558; BC9507160 proposition.

Dowsett J did not consider the London County Council case to stand for such an inflexible

124.Jackson & Co v Napper (1886) 35 Ch D 162 46 SR (NSW) 430

at 172 per Stirling J; Grahame v Commissioner for Railways (1946)

at 438 per Davidson J; McRae v Coulton (1986) 7 NSWLR 644

v Johnstone Shire Council [1997] 1 Qd R 554 at 558; BC9507160 125.(1986) 7 NSWLR 644 at 664

.

126.McRae v Coulton (1986) 7 NSWLR 644 127.See 23.18–23.24.

per Dowsett J.

at 664, 666 (footnote supplied).

at 664 per Hope JA; Vincent

Page 9 of 13 Capacity to Delegate Functions to an Agent 128.Vincent v Johnstone Shire Council [1997] 1 Qd R 554 at 558; BC9507160

per Dowsett J.

Personal acts other than signature

3.26 Where the issue concerns whether an act under statute, whether a duty or a power, is to be performed personally or can be performed by an agent, again the matter is one of statutory construction. The words of the relevant section, taken in the context of the legislation as a whole, and with a view to the practical and sensible workings of that legislation, are likely to be primary considerations. As this remains an inquiry dependent on the legislation in, and facts of, each case, it is difficult to state specific principles, and case illustrations are most profitable. In Re Walker129. the applicant sought to quash a decision cancelling its incorporation on the ground that agents of the Commissioner for Fair Trading had taken steps to effect the cancellation whereas statute required the commissioner himself to make the decision.130. The applicant maintained that, as the exercise of the power in question could have serious adverse consequences for a person, it could not be delegated to an agent. Although accepting that this could be a relevant inquiry, Pullin J did not see it as decisive given various cases

Page 75 where the consequences were serious yet the courts concluded that a power conferred on an authority might be exercised through agents.131. That his Honour placed greater weight on another inquiry — whether, in view of the number of powers and duties to be performed by the authority, parliament must have intended that the authority could act via an agent by reason of administrative necessity — appears from the following extract from his judgment:132. It is also to be noted that [the relevant section], if read as requiring the Commissioner to take all of the steps referred to, would require him to personally attend at the post office to ‘send’ a notice stating the ground or grounds on which it was proposed to cancel the incorporation of an association. Parliament should surely not have intended that result. In addition, the suggestion that the Commissioner should personally take all of the steps leading to cancellation of incorporation as well as attending to his many other duties and exercising the large number of other powers to be performed by him, both under the Act and under other Acts, leads me to the view that Parliament must have intended that he could act through an authorised agent. This is particularly so where Parliament has built safeguards into the Act. The safeguards are that the Supreme Court may be asked to intervene and prevent a cancellation order being made if proceedings are taken by an aggrieved person, and that if some error is made in the process, the Commissioner may reinstate the incorporation of the association.

Pullin J, moreover, saw the absence of a statutory authority to delegate powers as strengthening rather than weakening the view that parliament intended that the commissioner could act via agents.133.

129.[2003] WASC 252; BC200307867

.

130.Namely under the Associations Incorporations Act 1987 (WA) s 35. 131.See, for example, Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 (held that an agent could exercise powers to requisition land); Commonwealth v Rian Financial Services & Developments Pty Ltd (1992) 36 FCR 101; BC9203505

(where an agent was held to be authorised to exercise powers on behalf of an authority to cancel a

contract); Rail Signalling Services Pty Ltd v Victorian Rail Track [2012] VSC 452; BC201207467 (respondent's board of directors passed resolution confirming the general manager's authority to issue certain notices and ratifying the general manager's authority in the event that no authority existed at the time the notices were issued). 132.Re Walker [2003] WASC 252; BC200307867

at [28].

Page 10 of 13 Capacity to Delegate Functions to an Agent 133.Re Walker [2003] WASC 252; BC200307867

at [29].

3.27 Some duties or powers found in a statute exhibit a more personal character, and therefore should be seen as incapable of being performed by an agent. An example may be the obligation to swear a verifying affidavit that requires the deposing party to apply his or her mind to matters that are or should be within his or her own knowledge.134. Yet it should not be assumed that every instance of swearing an affidavit retains an intensely personal character for this purpose. An example is found in General Legal Council Ex parte Whitter v Frankson,135. in which the statutory provision in question empowered any person aggrieved by an act of professional misconduct committed by an attorney to apply to a prescribed committee to require the attorney to answer allegations ‘contained in an affidavit made by such person’.136. The complainant had instructed her son to make the complaint on her behalf, and the issue was whether she should have sworn the affidavit herself. The Privy Council noted that, for the purposes of the relevant section, the affidavit was in the nature of a pleading, to contain the allegations that the attorney must answer, but no more. When coupled with the fact that the section allowed a similar complaint to be made by a member of the Law Society Council, who would most likely lack personal knowledge of the circumstances of the alleged misconduct, any policy reasons for requiring that the affidavit be sworn by the complainant personally were absent.137.

Page 76

134.See, for example, Clauss v Pir [1988] Ch 267 (where Mr Francis Ferris QC, sitting as a deputy judge of the Chancery Division, ruled that an order upon a defendant to swear an affidavit verifying his list of documents could be performed only by the defendant personally). 135.[2006] 1 WLR 2803

; [2006] UKPC 42

.

136.Legal Profession Act 1971 (Jamaica) s 12(1). 137.General Legal Council Ex parte Whitter v Frankson [2006] 1 WLR 2803

; [2006] UKPC 42

at [10].

Limits or restrictions on appointment of agent

3.28 The fact that a right or power conferred on a principal is not personal (such that an agent may be appointed to exercise it) does not of itself mean that the appointment in question is completely unfettered, particularly where its exercise will impact on other persons to the instrument or agreement. A typical example relates to the rights of partners in a partnership. Prima facie whatever right is given to the partners is capable of being exercised by an agent, unless the partnership legislation or the partnership deed limits that right.138. In each jurisdiction the partnership legislation entitles every partner to access, inspect and copy the partnership books.139. In Bevan v Webb140. it was argued that the absence in the legislation and the partnership deed of express provision enabling partners to inspect the partnership books by the agency of someone else excluded any right to so inspect. In support of this argument reference was made to the confidence that exists in all partnership situations — the personal nature of the relationship — with which the introduction of a third person such as an agent to inspect the accounts would be inconsistent. This argument was rejected by the English Court of Appeal, Collins LJ noting the general rule that ‘a permission accorded to a specified person to do an act is accorded to him or his agents’.141. In the circumstances, the court

Page 11 of 13 Capacity to Delegate Functions to an Agent found no grounds for implying the exclusion of the general presumption. It recognised the need in practice for a partner to appoint an agent in a field where the partner lacks knowledge, in that, if the right to inspect be denied to an agent, no solicitor could employ another person to assist in the settlement of his or her partnership accounts without submitting to have such accounts taken in an insufficient manner. In the words of Collins LJ, ‘the permission to a man to do an act, which he cannot do effectually without the help of an agent, carries with it the right to employ an agent’.142. Moreover, there may be grounds for a partner to appoint an agent to inspect partnership books where the partner is physically unable, whether due to absence or sickness, to do so personally.

138.Bevan v Webb [1901] 2 Ch 59

at 78 per Stirling LJ.

139.ACT s 29(9); NSW s 24(1) (rule (9)); NT s 28(j); Qld s 27(9); SA s 24(ix); Tas s 29(i); Vic s 28(9); WA s 34(8). See further Fletcher, pp 110–11. 140.[1901] 2 Ch 59

.

141.Bevan v Webb [1901] 2 Ch 59

at 68.

142.Bevan v Webb [1901] 2 Ch 59

at 75.

3.29 This does not, however, confer upon a partner an absolutely unqualified right to appoint any agent for the purpose of inspecting partnership books. The nature of a partnership dictates what was described in Bevan v Webb by Collins LJ as a ‘natural common-sense limitation of such a right of inspection’,143. namely:144. The inspection is to be of books and documents in which all the partners are interested, and the inspection cannot be made in such a way as to curtail the rights or prejudice the position of the other partners. They are all interested in the matter, and one partner cannot assert his right in derogation of the rights of others. But the interests of the others can be amply safeguarded by placing a limitation upon the particular agency which the inspecting party desires to employ. The agent employed must be a person to whom no reasonable objection can be taken, and the purpose for which he seeks to use the right of inspection must be one consistent with the main purposes and the well-being of the whole partnership.

Hence, the right of inspection by an agent is qualified by its limitation to an agent to whom the other partners cannot reasonably object and its exercise for a purpose consistent with that of the partnership. If, for example, the agent proposed to be appointed has personal business or other interests that conflict with or are in any other way adverse to the interests of the partnership business, reasonable objection may be taken to the appointment.145. The latter

Page 77 limitation dictates, for example, that the agent, like any partner carrying out the inspection personally,146. is subject to an obligation not to use the information acquired for a purpose inconsistent with the benefit of the partnership.147.

143.Bevan v Webb [1901] 2 Ch 59

at 69. See also at 80 per Stirling LJ.

144.Bevan v Webb [1901] 2 Ch 59

at 69–70 (emphasis supplied).

145.Dadswell v Jacobs (1887) 34 Ch D 278 (where objection was validly taken to the appointment of an agent on the ground that he was employed by a rival firm). 146.By virtue of the fiduciary relationship between partners: see, for example, Trego v Hunt [1896] AC 7

.

Page 12 of 13 Capacity to Delegate Functions to an Agent 147.Bevan v Webb [1901] 2 Ch 59

at 81 per Stirling LJ.

3.30 More generally, whether and the extent to which an agent may be appointed for the purposes of carrying out a principal's entitlement to inspect documents is ultimately determined by the terms of any applicable statute. For instance, Corporations Act 2001 (Cth) s 198F entitles a director of a company to inspect certain books of the company for the purposes of a legal proceeding within set parameters, in the defined circumstances, and entitles a person so authorised to inspect the books to make copies of the books for the purposes of those proceedings.148. In Oswal v Burrup Holdings Ltd149. Barker J ruled that the section did not entitle a director to appoint agents to conduct the inspection, reasoning as follows: It will be noted that … it is the person authorised to inspect the documents — ie, the director who makes the application — who may make copies of the books. However, nothing is said in s 198F about the person authorised being entitled to conduct the inspection by his or her agents or that his agents may make copies. In this regard, the entitlement of a director to have access to records of a company under s 198F of the Corporations Act may be contrasted with the entitlement, under s 290(2), of a director to obtain the order of a court authorising a person to inspect the financial records of a company ‘on the director's behalf’.

Parliament could, had it been so minded, have inserted in s 198F a provision such as s 290(2) but chose not to do so. Accordingly, taking into account the express terms of s 198F, and those of s 290(2), his Honour ruled that a director's right of inspection was a personal one, and the court lacked the power to authorise inspection under s 198F by another person on a director's behalf.150.

148.Corporations Act 2001 (Cth) s 198F(1), 198F(3). 149.(2011) 281 ALR 432; [2011] FCA 609; BC201103663

at [22].

150.Oswal v Burrup Holdings Ltd (2011) 281 ALR 432; [2011] FCA 609; BC201103663

at [25].

3.31 A trustee, like a partner, is justified by the general law to appoint an agent to perform his or her duties and powers where this is necessary for practical reasons.151. Care must be exercised in selecting agents that are suitable and competent152. in the relevant area of appointment and in supervising agents in the work undertaken.153. For example, the appointment of an agent with a potential conflict of interest, such as a lawyer who owes duties to another client, does not constitute the appointment of a suitable agent.154. Unlike the partnership legislation (except in the Northern Territory, South Australia and Tasmania), the trustee legislation specifically provides in broad terms for agents to be appointed by trustees.155. Moreover, in most jurisdictions the legislation confers specific powers on trustees to employ solicitors, on bankers to receive trust moneys156. and on valuers and auditors.157.

Page 78 Trusts law, however, distinguishes between the appointment of an agent and that of a delegate. At general law the personal nature of the trustee–beneficiary relationship dictates that although trustees can appoint an agent to carry out or implement decisions made by the trustees, they cannot delegate the exercise of their powers, authorities and discretions under the trust to a third party.158. Hence, the common law qui facit per alium facit per se rule159. does not apply to a trustee, so far as it would otherwise envisage delegation, except as allowed by the terms of the trust instrument160. or pursuant to the limited power of delegation conferred by the trustee legislation.161.

Page 13 of 13 Capacity to Delegate Functions to an Agent

151.Re Speight (1883) 22 Ch D 727

at 762–3 per Bowen LJ, at 739–40 per Jessel MR, at 756–60 per Lindley LJ

(affd Speight v Gaunt (1883) 9 App Cas 1 ); Estate of Purdon (1935) 53 WN (NSW) 148 Nicholas J. See further Dal Pont, Equity and Trusts, [22.55]. 152.Fry v Tapson (1884) 28 Ch D 268 Cooper (1904) 4 SR (NSW) 433

at 280 per Kay J; Robinson v Harkin [1896] 2 Ch 415

; McMahon v

.

153.Graham v Gibson (1882) 8 VLR (Eq) 43; Guazzini v Patterson (1918) 18 SR (NSW) 275 Trusts [1968] 1 WLR 866

at 148–9 per

; Re Lucking's Will

at 876–7 per Cross J.

154.Wilkinson v Feldworth Financial Services Pty Ltd (1998) 29 ACSR 642 at 694; BC9806306

per Rolfe J.

155.Trustee Act 1925 (ACT) s 53; Trustee Act 1925 (NSW) s 53; Trusts Act 1973 (Qld) s 54; Trustee Act 1958 (Vic) s 28; Trustees Act 1962 (WA) s 53. For a discussion of these provisions see Estate of Purdon (1935) 53 WN (NSW) 148 at 148–9 per Nicholas J. 156.Trustee Act 1893 (NT) s 17; Trusts Act 1973 (Qld) s 54(3); Trustee Act 1936 (SA) s 24; Trustee Act 1898 (Tas) s 20; Trustee Act 1958 (Vic) s 28(3); Trustees Act 1962 (WA) s 53(3). 157.Trustee Act 1925 (ACT) ss 51, 52; Trustee Act 1925 (NSW) ss 51, 52; Trusts Act 1973 (Qld) ss 51, 52; Trustee Act 1958 (Vic) ss 26, 27; Trustees Act 1962 (WA) ss 50, 51. 158.McMillan v McMillan (1891) 17 VLR 33 Jacobs, [1723].

at 38–9 per Hodges J. See further Dal Pont, Equity and Trusts,[22.45];

159.See 3.16. 160.Doyle v Blake (1804) 2 Sch & Lef 231; Kilbee v Sneyd (1828) 2 Moll 186. 161.Trustee Act 1925 (ACT) s 64; Trustee Act 1925 (NSW) s 64; Trustee Act 1907 (NT) s 3; Trusts Act 1973 (Qld) s 56; Trustee Act 1936 (SA) s 17; Trustee Act 1898 (Tas) s 25AA; Trustee Act 1958 (Vic) s 30; Trustees Act 1962 (WA) s 54.

End of Document

The Nature of Agency by Agreement Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 4: Agency Created by Agreement > Chapter 4 Agency Created by Agreement Page 81

Chapter 4 Agency Created by Agreement [Current to September 2013] Please click on the link below to download the entire chapter. The Nature of Agency by Agreement

4.1

Elements of Agency Relationship

4.3

Consent/assent

4.4

Relationship between consent/assent and intention

4.4

Implied agency

4.7

Implied agency distinguished from implied authority

4.10

Intention stemming from statute

4.11

Authority

4.12

Control?

4.13

Non-contractual Agencies

4.14

Formalities for Appointment

4.21

General rule

4.21

Deeds

4.22

Statutory formality requirements

4.23

Formalities for powers of attorney

4.29

Formalities

4.29

Registration

4.30

Joint Appointments

4.31

Co-principals

4.31

Co-agents

4.32

The Nature of Agency by Agreement

Page 2 of 3 The Nature of Agency by Agreement

Please click on the link below to download the entire chapter.

4.1 The most common way in which a relationship of agency arises is pursuant to the express or implied assent or consent of both principal and agent.1. This can be termed ‘express’ or ‘implied’ agency. In the words of Pollock CB in Reynell v Lewis:2. ‘This agency may be created by the immediate act of the party, that is, by really giving the authority to the agent, or representing to him that he is to have it, or by constituting that relation to which the law attaches agency’.So ‘express agency’ is created where the principal, or a person authorised by the principal, by express agreement appoints the agent, whether by deed, by writing under

Page 82 hand or by parol.3. ‘Implied agency’ arises from the conduct or situation of the parties,4. and serves in part to explain why some commentators prefer to speak of ‘consensual agency’ rather than agency by agreement.5. Importantly, whether express or implied, agency by agreement rests upon the conferral of antecedent authority by a principal on an agent. In cases where retrospective authority is conferred, this is through the vehicle of ratification, which is discussed in Chapter 5.

1.

Bruton v Regina City Policemen's Association, Local No 155 [1945] 3 DLR 437 at 456 per MacDonald JA (CA(Sask)); Field v Shoalhaven Transport Pty Ltd [1970] 3 NSWR 96

at 103 per Asprey JA.

2.

(1846) 15 M & W 517 at 526; 153 ER 954 at 958.

3.

Bruton v Regina City Policemen's Association, Local No 155 [1945] 3 DLR 437 at 456 per MacDonald JA (CA(Sask)).

4.

See 4.7–4.9. Implied agency has also been said to arise from necessity (Bruton v Regina City Policemen's Association, Local No 155 [1945] 3 DLR 437 at 456 per MacDonald JA (CA(Sask)), although it must be queried whether agency of necessity is really a form of implied agency, or should be better described as imposed or imputed agency. As to agency of necessity see 6.2–6.11.

5.

See, for example, Bowstead, pp 3–6.

4.2 Agency by agreement must be contrasted with ‘ostensible agency’.6. Some of the ramifications of an agency relationship can arise where an agent does an act not authorised by the terms of the agency (that is, not within his or her antecedent authority), but the principal has ‘held out’ the agent to third parties as having authority to do that act on the principal's behalf. Out of concern with the interests of innocent third parties dealing with agents who are ‘apparently’ or ‘ostensibly’ authorised to act on behalf of a principal, the law prevents (‘estops’) a principal from denying that authority where the principal has represented to those third parties that the agent has that authority.7. Where there is the requisite ‘holding out’, the same is the outcome even in the absence of a pre-existing agency relationship. Again in the words of Pollock CB in Reynell v Lewis:8. This agency may be created by … the representation of the defendant to the plaintiff, that the party making the contract is the agent of the defendant, or that such relation exists as to constitute him such; and if the plaintiff really makes the contract on the faith of the defendant's representation, the defendant is bound; he is estopped from disputing the truth of it with respect to that contract.

This form of ‘agency’ is better viewed simply in terms of ‘ostensible agency’ because it creates no direct contractual relationship between the principal and the third party. As such, it does not create a ‘real’ agency,9. but operates to

Page 3 of 3 The Nature of Agency by Agreement prevent the principal from denying the agent's authority to bind the principal in the matter in issue.10. It does not serve to create rights and duties as between principal and agent. Only if the principal ratifies the agent's act is he or she able to enforce it, for the effect of ratification is to create a legal relationship between the principal and the person with whom the agent dealt on the faith of the agent's ostensible authority.11.

6.

See, for example, Rama Corp Ltd v Proved Tin & General Investments Ltd [1952] 2 QB 147 Slade J.

7.

As to the doctrine of ostensible authority see Ch 20.

8.

(1846) 15 M & W 517 at 526; 153 ER 954 at 958.

9.

Pole v Leask (1863) 8 LT 645

at 648 per Lord Cranworth.

10. Harry S Bagg Liquidation Warehouse Pty Ltd v Whittaker (1982) 44 NSWLR 421 at 429; BC8200008 11. As to the doctrine of ratification see Ch 5.

End of Document

at 149–50 per

per Powell J.

Elements of Agency Relationship Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 4: Agency Created by Agreement > Chapter 4 Agency Created by Agreement

Elements of Agency Relationship Please click on the link below to download the entire chapter.

4.3 There are at least two essential elements of an agency relationship: the consent (or assent) of both principal and agent; and the authority given to the agent by the principal to act on the principal's behalf. A third element found in some conceptions of an agency relationship is the principal's control over the agent's actions. Each of these elements is discussed in greater detail below, but it should be noted here that in Australian law the alleged control element is arguably neither crucial to agency nor is it independent of the authority element.

Page 83

Consent/assent Relationship between consent/assent and intention

4.4 Consent (or assent) requires some acceptance by the agent of a mandate, whether or not formal or contractual,12. from the principal.13. It has been said, to this end, that ‘[for] creation of the agency relationship it is not necessary that there should be a legally binding contract of agency, but it is necessary that there should be an instruction or request from the[principal] and an undertaking of the duty or task by the agent’.14. It follows that bare assertions by the alleged agent that he or she is acting for the alleged principal cannot prove the existence of the alleged agency; there must be conduct on the part of the alleged principal from which an agency relationship can be inferred ‘which breathes life into the assertions of the alleged agent’.15. The need for consent,16. moreover, highlights the relevant inquiry, namely whether the relationship created by the parties evidences an intention to create a relationship reflecting what the law defines as an agency relationship.17. Put another way, the principal must intend that the agent will act for him or her and the agent must intend to accept the authority and act on it.18. Hence, the existence of agency is, with the exception of agency by necessity,19. grounded in intention, not imposed by law without regard to intention.20.

12. As to non-contractual agencies see 4.14–4.20. 13. Morgans v Launchbury [1973] AC 127

at 141 per Lord Pearson; Alliance Craton Explorer Pty Ltd v Quasar

Resources Pty Ltd (2013) 296 ALR 465; [2013] FCAFC 29; BC201301037 14. Morgans v Launchbury [1973] AC 127

at 140 per Lord Pearson.

at [53] per the court.

Page 2 of 9 Elements of Agency Relationship 15. Quikfund (Australia) Pty Ltd v Prosperity Group International Pty Ltd (in liq) (2013) 209 FCR 368; [2013] FCAFC 5; BC201300216

at [79] per the court.

16. Cf the argument that agency can exist even where there is no consent, as in the case of a ‘self-appointed agent’: Fridman, p 15. Professor Fridman identifies Boardman v Phipps [1967] 2 AC 46 as illustrative of a ‘selfappointed agent’. The case involved the purchase by, inter alia, a beneficiary of a trust of shares in a company in which the trust held shares, for the purpose of securing control of the company and so benefiting the trust through the declaration of capital dividends. A majority of the House of Lords held that the beneficiary was a fiduciary, and therefore should account for personal profits made as a result, because he acted as agent for the trust in this transaction. However, in that the issue of agency was simply used as a vehicle to secure accountability for a fiduciary breach, it must be queried whether the court intended to characterise the beneficiary as an agent in the legal sense and, in any event, whether there was a need for any agency to support the conclusion. The beneficiary, by virtue of his position, could have been found to be a fiduciary without the need to resort to any concept of agency. Professor Fridman adds that the existence of self-appointed agents, independent of consent, is supported by the fact that not all incidents of an agency relationship arise as a result of any special agreement between principal and agent, namely stemming from equity or tort: p 16. However, the mere fact agents are subject to duties imposed by law (and which in most cases can in any event be modified by consent), does not deny the importance of consent to the creation of an agency, as opposed to its incidents. 17. Pole v Leask (1863) 8 LT 645 at 648 per Lord Cranworth (‘No one can become the agent of another person except by the will of that other person’). As to the legal definition of ‘agency’ see 1.1–1.6.As to agency compared with other legal relationships see Ch 2. 18. Field v Shoalhaven Transport Pty Ltd [1970] 3 NSWR 96

at 103 per Asprey JA.

19. As to which see 6.2–6.11. 20. Ex parte White (1871) 24 LT 45 at 46 per James LJ (affd Towle v White (1873) 29 LT 78

).

4.5 As with any legal vehicle created by the intention of the parties, the existence of agency depends on the facts of a particular case.21. The need for consent also explains why an agency relationship, though not invariably contractual in nature,22. is most commonly formed via a contract, for consensus or agreement is the basis of contract.23. The manifestation of consent may be made in any way.24. It is a question that is to be determined objectively, which in part explains why some commentators prefer to speak in terms of assent rather than consent.25.

Page 84 For the purposes of this determination, the court looks primarily to what the parties said and did at the time of the alleged creation of the agency.26. Earlier words and conduct may afford evidence of a course of dealing in existence at that time and may be taken into account more generally as historical background. Also, as evidence of the acts of the parties subsequent to a written contract may be admissible to establish the existence of a contract,27. later words and conduct may have some bearing on determining whether or not an agency relationship was intended.28.

21. Branwhite v Worcester Works Finance Ltd [1969] 1 AC 552 Ltd v Lynch [1993] 2 VR 469

at 573 per Lord Morris; Custom Credit Corporation

at 486 per Marks J.

22. As to non-contractual agencies see 4.14–4.20. 23. Markwick v Hardingham (1880) 15 Ch D 339

at 349 per James LJ (CA).

24. Field v Shoalhaven Transport Pty Ltd [1970] 3 NSWR 96

at 103 per Asprey JA.

25. See, for example, Bowstead, p 4; Restatement (3d) §1.01, Comment d.

Page 3 of 9 Elements of Agency Relationship 26. Garnac Grain Co Inc v H M F Faure & Fairclough Ltd [1968] AC 1130 Shoalhaven Transport Pty Ltd [1970] 3 NSWR 96

at 1137 per Lord Pearson; Field v

at 103 per Asprey JA.

27. Howard Smith & Co Ltd v Varawa (1907) 5 CLR 68 at 78; BC0700018 per Griffith CJ; Australian Broadcasting Commission v XIVth Commonwealth Games Ltd (1990) 18 NSWLR 540 at 547–8 per Gleeson CJ (noting that, particularly where the intention of the parties to enter into a contract is in issue, post-contractual communications between the parties may often be the best evidence on that subject); Fabry v Federal Commissioner of Taxation (2001) 48 ATR 130; [2001]FCA 1431; BC200106247

at [22] per Merkel J.

28. See, for example, Cox v Goldcrest Developments (NSW) Pty Ltd (2000) 50 NSWLR 76; [2000]NSWSC 763; BC200004323

at [12]–[16] per Young J (discussed at 4.31); Fabry v Federal Commissioner of Taxation (2001) 48

ATR 130; [2001] FCA 1431; BC200106247

at [22], [23] per Merkel J.

4.6 Although the foregoing refers to a focus on consent or assent to determine whether the parties intended to create an agency relationship, the notion of consent or assent performs an ongoing role. The continuation of an agency relationship is likewise premised on a consensual relationship, albeit one governed by the terms of the relationship established at the time of its creation, as varied or amended from time to time pursuant to the agreement of the parties. The main exception to this continuing consensus is the agency inherent in an enduring power of attorney,29. where the agent's (attorney's) rights and duties survive the subsequent incapacity of the principal (donor), namely at a time when the donor lacks the legal capacity to exercise consent. For this reason, inter alia, the creation and incidents of enduring powers of attorney are regulated by statute.30.

29. As to enduring powers of attorney see 1.30. 30. See 4.29.

Implied agency

4.7 The focus on intention dictates that the parties need not have actually used the language of agency for the law to infer an intention to create an agency relationship. The parties may not even appreciate the legal concept of agency but may nonetheless create an agency relationship if what they have done is best reflected by that concept.31. This may be so even if they profess to disclaim an agency relationship, whether by the terms of the contract between them or otherwise.32. An intention to create an agency may be manifested ‘simply by placing another in a situation in which, according to the ordinary rules of law, or … according to the ordinary usages of mankind, that other is understood to represent and act for the person who has so placed

Page 85 him’.33. It need not involve a positive act by the principal, but may be created by the principal's acquiescence. Jordan CJ explained this in Bonette v Woolworths Ltd as follows:34. Evidence that a person is purporting to do acts on behalf of a principal in some capacity in such circumstances that the knowledge and approval of the principal may fairly be inferred is evidence that the principal has authorised him to act in the particular capacity. If there is evidence justifying such an inference, it justifies the further inference that the person has authority to do such acts as would be done, as a matter of ordinary business practice, by a person acting in such a

Page 4 of 9 Elements of Agency Relationship capacity.

31. Branwhite v Worcester Works Finance Ltd [1969] 1 AC 552 at 587 per Lord Wilberforce (‘while agency must ultimately derive from consent, the consent need not be to the relationship of principal and agent itself … but may be to a state of fact upon which the law imposes the consequences which result from agency’). Cf the same approach in relation to the creation of an express trust: see Bahr v Nicolay (No 2) (1988) 164 CLR 604 at 618; BC8802595 per Mason CJ and Dawson J (‘if the inference to be drawn is that the parties intended to create or protect an interest in a third party and the trust relationship is the appropriate means of creating or protecting that interest or of giving effect to that intention, then there is no reason why in a given case an intention to create a trust should not be inferred’). 32. See 1.6. 33. Pole v Leask (1863) 8 LT 645 at 648 per Lord Cranworth. See also Oskar United Group Inc v Chee (2012) ACWS (3d) 721; [2012] ONSC 1545 at [58]per J McCarthy J (SCJ(Ont)) (‘Agreement between principal and agent may be implied in a case where each has conducted himself towards the other in such a way that it is reasonable for that other to infer from that conduct consent to the agency relationship’). 34. (1937) 37 SR (NSW) 142 at 150 . The case of Hely-Hutchinson v Brayhead Ltd [1968] 1 QB 549 (as to which see 8.42), in which a person not formally appointed by resolution of the board to act on the company's behalf for a particular purpose, but who assumed that role without dissent from those who customarily ran the company, was held to be the company's agent, can be explained on the grounds of implied agency.

4.8 The main reasons for seeking to establish an implied agency are to render a person liable to a third party for the defaults of another (the person's alleged agent),35. to substantiate a claim by a person (as agent) against his or her alleged principal (such as a claim for commission),36. and to establish legal liability in a person (the alleged agent) for breach of duty to the alleged principal.37. To this end, it must be noted that a court will not impute an intention to create an agency where there is no actual evidence of intention to this effect. The courts' approach, in the context of a claim for commission by an alleged agent, is illustrated by the High Court's decision in Dolphin v Harrison, San Miguel Pty Ltd.38. The plaintiff, who had in the past dealt with the defendant, wrote the following to the defendant: ‘The writer is under the impression that he heard somewhere that you are inclined to sell your business. If such is the case we should be glad to hear from you stating what amount you require for same and any particulars that are likely to help us to make a sale. We have an inquiry for a small brewery and shall be glad to hear from you on the subject’. The defendant wrote in reply: ‘In reference to sale of brewery I want £2,500 net for the business. If I can't get that I don't sell. The only reason for selling I am getting too old, if I was 20 years younger I would not think of selling. Any further particulars you can have by applying’. The plaintiff alleged that this correspondence established a contract that the defendant would employ the plaintiff as agent to introduce a purchaser and pay commission if the plaintiff did so. The court rejected this contention. Griffith CJ, with whom Barton and O'Connor JJ concurred, held that the defendant's response had negatived the idea that the defendant was employing the plaintiff to sell on commission.39. His Honour then observed:40. Now it is suggested that, as the plaintiffs were the means of introducing [the purchaser] to the defendant, and as [the purchaser] made a contract for the sale of the brewery, there was a liability on the part of the defendant to pay commission to the plaintiffs. If there was a promise by the defendant to pay commission to the plaintiffs for finding a purchaser, that is, no doubt, quite right. It would not matter in that case what price the defendant accepted from [the purchaser] because the services had been rendered by the plaintiffs to the defendant. But it is quite clear that there was no such contract between the plaintiffs and the defendant … I think it is impossible to find any promise by the defendant to pay commission for the introduction of a purchaser by the plaintiffs.

Page 5 of 9 Elements of Agency Relationship

Page 86

35. As to the liability of the principal to third parties see Pt VI. 36. As to rights of agents against principals see Pt V. 37. As to claims by principals against agents for breach of duty see Pt IV. 38. (1911) 13 CLR 271; BC1100023

.

39. Dolphin v Harrison, San Miguel Pty Ltd (1911) 13 CLR 271 at 274; BC1100023 40. Dolphin v Harrison, San Miguel Pty Ltd (1911) 13 CLR 271 at 275–6; BC1100023

. .

4.9 Another example, though in the context of a plaintiff alleging that the defendant had purchased property as his agent, is Cadd v Cadd.41. The evidence revealed that in a conversation between the parties, who were brothers, the words ‘I'll buy the place for you’ and ‘you can have it as soon as you pay me what you owe me’ were used. The High Court held that, of themselves, those words were not sufficient to establish an implied agency; the phrases were open to more than one meaning, only one of which connoted an intention to constitute the defendant as the plaintiff's agent.42. In this respect, Isaacs J remarked:43. If the employment were one of agency it would be remarkable that the agent should stipulate as to when his principal might have his own property, even though he were able to pay for it beforehand. It is not an unreasonable stipulation for the true owner, speaking to a struggling brother whom he was willing to befriend, and telling him that when he has succeeded in clearing off a minor existing obligation he may assume a heavier one.

The purchase was conducted wholly in the name of the defendant, from which no indication of the existence of agency could be derived.44. That the parties entered into an agreement under which the plaintiff was to farm the land (as ‘cultivator’) for the defendant (as ‘proprietor’) was further evidence that they had not intended an agency relationship.As such, the plaintiff's own conduct was inconsistent with his allegation.45.

41. (1909) 9 CLR 171; BC0900030 the property for the plaintiff.

. In so arguing, the plaintiff was seeking to characterise the defendant as trustee of

42. Cadd v Cadd (1909) 9 CLR 171 at 183 per Barton J, at 185 per O'Connor J (who noted that the facts could equally be interpreted as evidencing an intention that the defendant buy the property, with a view to selling it to the plaintiff at a later stage at the same price at which it had been purchased); BC0900030 43. Cadd v Cadd (1909) 9 CLR 171 at 188–9; BC0900030 44. Cadd v Cadd (1909) 9 CLR 171 at 181; BC0900030 45. Cadd v Cadd (1909) 9 CLR 171

.

. per Barton J.

at 178 per Griffith CJ, at 191 per Isaacs J; BC0900030

Implied agency distinguished from implied authority

.

Page 6 of 9 Elements of Agency Relationship

4.10 The existence of an ‘implied agency’ should not be confused with the ‘implied authority’ of an agent. The former terminology relates to the creation of the agency relationship, implying or inferring its existence from the conduct of the parties in the circumstances. When speaking of implied authority, it is presupposed that an agency relationship already exists, whether created expressly or implied from the circumstances of the case. The agent's authority is implied in that it does not constitute an express written or oral authorisation to engage in a particular form of conduct (‘express actual authority’), but is implied from the nature of the express authority conferred and the office or position in which the agent is placed as a result.46. So an agent pursuant to an implied agency may have express authority as well as implied authority. Likewise an express agency may, and usually does, confer on an agent implied authority consistent with the agency.

46. As to agents' implied authority see Ch 8.

Intention stemming from statute

4.11 Although agency relationships are most commonly created in private law pursuant to the intention and assent of two or more parties, statute can also evidence an intention to create an agency relationship. Again, though, like agency created privately, the use of the term ‘agent’ or ‘agency’ is not by itself determinative of parliament's intention. Occasions exist in the case law where such a term is used in a statute without evidencing an intention to create what at law amounts to an agency relationship,47. just as there are occasions where a court has interpreted the nature of the relationship created by statute as one of agency even though

Page 87 parliament did not use such a term in the statutory language.48. In each case, consistent with the accepted approach to statutory construction generally, the court must determine the type of relationship that, in view of the language used in its context and its incidents, parliament intended to create.

47. See, for example, Kench v Adams (1906) 23 WN (NSW) 48; Owners — Strata Plan No 5 3441 v Walter Construction Group Ltd(2004) 62 NSWLR 169; [2004] NSWCA 429; BC200408103

, each discussed at 1.7.

48. See, for example, S v Attorney-General [2003] 3 NZLR 450; [2003] NZCA 149 (where Blanchard J (who delivered the judgment also of McGrath, Anderson and Glazebrook JJ) held that the Crown was liable for child abuse (including sexual molestation) by foster parents, reasoning that ‘[b]ecause of the continuing statutory duty of the Superintendent to provide for the special protection of each child, the foster parents should be regarded as having been made agents of the State, albeit that their agency was of an unusual, indeed unique, nature’: at [68]; cf at [101] per Tipping J, who preferred to characterise the relationship in question, not as agency, but ‘as sui generis, ie, of its own special kind’).

Authority

4.12 The essence of an agency relationship, no matter what legal definition of ‘agency’ is used, is that the agent be in some way, however minor, authorised to act on behalf of the principal.49. For this purpose, authority can be ‘express’, being specific authorisation given by express words whether oral or written to engage in a particular form

Page 7 of 9 Elements of Agency Relationship of conduct,50. and/or ‘implied’, being authority inferred from both the conduct of the parties and the circumstances of the case, the latter including the office or position in which the agent is placed.51. A useful starting point in addressing whether a person has authorised another to do one or more acts on his or her behalf is to consider for whose benefit or in whose interest it was intended that the act(s) should be done.52. The scope of this authority determines the extent to which the agent's actions can, without personal liability for so doing,53. impact on the principal's affairs. It moreover determines the scope of the legal obligations54. and entitlements55. between agent and principal inter se. It follows that being an agent ‘is not a characteristic that a person has always and in all circumstances and for all purposes’.56. It does not, for instance, deny the agent all capacity to act in his or her own right. Also, a person can be an agent of another for purposes of creating a particular legal right or obligation, but not, even in connection with the one transaction, for the purposes of creating a different legal right or obligation. As well, a person can be an agent at one time for some purpose, but not an agent at another time for that purpose.57. In any case, as the agent's authority derives from the principal, ‘an agent cannot have greater authority than the principal’.58.

49. NMFM Property Pty Ltd v Citibank Ltd (No 10) (2000) 107 FCR 270; [2000] FCA 1558; BC200006827 Lindgren J.

at [522] per

50. Express authority is discussed in Ch 7. 51. Implied authority is discussed in Ch 8. 52. Press v Mathers [1927] VLR 326 165; [2004] HCA 52; BC200407463

at 332 per Dixon AJ; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR at [70] (FC).

53. An agent can affect the principal's affairs via ostensible authority (see Ch 20), in which case the principal, though unable to deny the agent's authority to a third party, can proceed against the agent to the extent that the agent has exceeded his or her actual authority. 54. As to duties of agent to principal see Pt IV. 55. As to the entitlement of agents against their principal see Pt V. 56. Kirkpatrick v Kotis (2004) 62 NSWLR 567; [2004] NSWSC 1265; BC200409031

at [89] per Campbell J.

57. Kirkpatrick v Kotis (2004) 62 NSWLR 567; [2004] NSWSC 1265; BC200409031

at [85]–[88] per Campbell J.

58. Cripps v Lakeview Farm Fresh Ltd (in receivership) [2006] 1 NZLR 238

at [22] per MacKenzie J.

Control?

4.13 The American Restatement defines agency in terms, inter alia, of an agent being ‘subject to the principal's control’,59. adding by way of commentary that ‘[a] principal's right to

Page 88 control the agent is a constant across relationships of agency’.60. The element of control arises out of the fact that at the outset of an agency relationship the principal prescribes what the agent must and must not do, during the course of that relationship generally has the right to issue interim instructions or directions to the agent, and is generally capable of terminating the agent's authority at any time. Even so, a principal's control over an agent is not, practically speaking, complete, as ‘no agent is an automaton who mindlessly but perfectly executes commands’,61. and the level of control ‘may be very attenuated with respect to the details’ of the agent's function.62. The focus on control is partly a legacy of American law viewing the relationship of employment as one of the accepted categories of agency. Indeed, in Australian (and English) law, control is an important element in

Page 8 of 9 Elements of Agency Relationship determining whether or not an employment relationship has been created.63. Yet there is no clear identity between agency and employment in Australian law, although there are occasions of overlap.64. In this regard, Bowstead suggests that in (English) agency law control plays ‘a more limited role’,65. remarking that:66. [A]gents will often not accept control by their principals as to the manner in which they act, and some will only accept instructions to act in accordance with usages of their own market. Others may be authorised only to do specific things.In many such situations the principal's only control lies in the power to revoke the authority, a power which agency law assumes he has at all times. It might seem therefore that control is not a significant feature of the internal relationship, except in so far as the relationship by definition posits a person, the principal, giving authority, and the agent's duty to obey instructions if he wishes to continue as agent.

An Australian judge has, in this vein, remarked that the characteristic of control ‘does not appear to figure prominently as a decisive indicator of agency in common law case law’.67. Rather, the principal's ability to control the agent's actions stems from the duties to which the agent is subject, whether pursuant to the terms of the agency agreement or under the general law. As the latter imposes upon agents the duty to follow the instructions of their principals,68. it is clear that a principal exercises control over the actions of his or her agent. Control, in this context, is no more than a logical corollary of the conferral of authority by principal upon agent, emanating from both the terms of the agency agreement itself and the general law, which mitigate against uncontrolled exercises of power. For this reason, the element of control is better seen in the context of agents' duties to their principals, discussed in Part IV. The foregoing is not to say that control is irrelevant to the creation of an agency relationship in Australian law, but that of itself it is not a decisive indicator of agency.69. In any case, where A is authorised to act in the name of B, but is entitled at all times to ignore B's interests, act entirely on his or her own behalf and advance his or her own interests, there is arguably no true relationship of agency, in part because B (as the supposed principal) has given up all control

Page 89 over A (the supposed agent).70. Conversely, a real level of control by one party over another's activities may operate, in tandem with other relevant evidence, to oust the practical effect of a clause in the agreement between them disclaiming agency71. or an allegation that the relationship is one of trust.72. In two scenarios in particular, though, the law appears to attach greater weight to control as an indicator of agency,73. namely where it is contended that a subsidiary company is an agent of its parent company,74. and where a party that is expressed to stand in the relation of independent contractor to another is claimed as well to be the agent of that other.75.

59. Restatement (3d) §1.01. 60. Restatement (3d) §1.01, Comment c. 61. Restatement (3d) §1.01, Comment f. 62. Green v H & R Block Inc. 735 A 2d 1039 at 1051 (Md 1999). 63. See C Sappideen, P O'Grady, J Riley, G Warburton and B Smith, Macken's Law of Employment, 7th ed, Lawbook Co, Sydney, 2011, pp 31–3. 64. See 2.19, 2.20. 65. Bowstead, p 8. 66. Bowstead, pp 8–9 (footnotes omitted). 67. South Sydney District Rugby League Football Club Ltd v News Ltd (2000) 177 ALR 611; [2000]FCA 1541; BC200006604

at [137] per Finn J (affd on a different point: News Ltd v South Sydney District Rugby League

Football Club Ltd (2003) 215 CLR 563; [2003] HCA 45; BC200304465 68. See 11.2–11.6.

).

Page 9 of 9 Elements of Agency Relationship 69. ACN 007 528 207 Pty Ltd (in liq) v Bird Cameron (2005) 91 SASR 570; [2005] SASC 204; BC200503824 per Besanko J.

at [110]

70. NT Power Generation Pty Ltd v Trevor (2000) 23 WAR 482; [2000] WASC 254; BC200006331 at [28] per Ipp J; Bowstead, p 9. See, for example, Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd (2013) 296 ALR 465; [2013] FCAFC 29; BC201301037 (where the Full Court noted that as the evidence, and the mining joint venture agreement between the parties, showed that the respondent, as manager, was virtually given carte blanche to decide how the mine was to be managed, this militated against a conclusion that the respondent was at any point acting as agent for the joint venturers: at [74]). 71. See, for example, Perpetual Trustees Australia Ltd v Schmidt [2010] VSC 67; BC201002712 (where J Forrest J ruled that the actions of a mortgage manager (VHLA) could be imputed to the plaintiff, notwithstanding that the agreement between them described VHLA as ‘in all respects, an independent contractor and acts as a principal’, because the agreement required VHLA to comply with the plaintiff's directions, and thereby revealed an agency constituted by a real level of control by the plaintiff over VHLA: at [152]–[154]). 72. See, for example, Optus Networks Pty Ltd v Horman [2010] VSC 108; BC201001801 (where a contractual arrangement under which a party (CS) was appointed to act as ‘custodian and agent’ for a partnership, was authorised to, hold, enter into and perform any rights under any contracts ‘as a custodian and agent for and on behalf of the partners’, and all the income it received from the business would be received ‘as custodian and agent for and on behalf of the partners absolutely in their proportions’, was held to create an agency rather than a trust relationship in view of the significant contractual powers vested in the partnership to control and direct the activities of CS: at [37]–[40] per Kaye J). 73. South Sydney District Rugby League Football Club Ltd v News Ltd (2000) 177 ALR 611; [2000]FCA 1541; BC200006604

at [137] per Finn J (affd on a different point: News Ltd v South Sydney District Rugby League

Football Club Ltd (2003) 215 CLR 563; [2003] HCA 45; BC200304465 74. See 2.26, 2.27. 75. See 2.21, 2.22.

End of Document

).

Non-contractual Agencies Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 4: Agency Created by Agreement > Chapter 4 Agency Created by Agreement

Non-contractual Agencies Please click on the link below to download the entire chapter.

4.14 Agency has been judicially described as ‘a relation of contract’,76. which is ‘almost invariably founded upon a contract between principal and agent’77. such that it ‘cannot normally exist apart from contract, express or implied’.78. There is, however, a consistent judicial recognition that there is no necessity as such for a contract to exist in order to create an agency — ‘[i]t is sufficient if there is consent by the principal to the exercise by the agent of authority and consent by the agent to his exercising such authority on behalf of the principal’.79. In this respect the following observations can be made.

76. C v Johnson [1967] SASR 279

at 296 per Bray CJ.

77. Yasuda Fire & Marine Insurance Co of Europe Ltd v Orion Marine Insurance Underwriting Agency Ltd [1995] QB 174 at 185 per Colman J. See also Kelly v Cooper [1993] AC 205 (‘agency is a contract made between principal and agent’). 78. C v Johnson [1967] SASR 279

at 213 per Lord Browne-Wilkinson (PC)

at 296 per Bray CJ.

79. Yasuda Fire & Marine Insurance Co of Europe Ltd v Orion Marine Insurance Underwriting Agency Ltd [1995] QB 174 at 185 per Colman J. See also Branwhite v Worcester Works Finance Ltd [1969] 1 AC 552 at 587 per Lord Wilberforce (noting that the relationship of agency is ‘consensual, not contractual’); Boulas v Angelopoulos (1991) 5 BPR 11,477 at 11,483–4; BC9101486 per Kirby P; Slater v Strawberry John Pty Ltd [2002] WASC 204; BC200204897

at[184], [185] per Hasluck J (citing the first edition of this text with approval).

4.15 First, an agent can be appointed by an agreement that is unenforceable as a contract for lack of consideration but which nonetheless shows that the parties intended to create an agency relationship.80. For example, in Taylor v Smith81. McArthur J noted that ‘[a]n agent may

Page 90 be authorised to do a thing, and yet be under no contractual obligation to do it … if he does it it is an act done for and on behalf of the principal’.In such a case, consideration would be illusory, as the promisee has a discretion whether or not to perform. Taylor v Smith involved an authority to sell in an estate agent, and the court held that when the vendor signed that authority there was an implied promise by the vendor that in the event of the agent producing a purchaser ready and willing to buy at the named price, the vendor would pay the agent the usual commission. According to McArthur J, ‘until that event happened there was no contract between the parties’.82. The

Page 2 of 4 Non-contractual Agencies agent was under no obligation to find a purchaser and the vendor was at liberty to withdraw the property from sale at any time prior to the agent finding a purchaser ready and willing to buy. Yet to say that the agent was not entitled to commission unless he produced a purchaser ready and willing to buy at the named price does not of itself deny the existence of duties of a contractual nature, such as the implied duty to exercise reasonable care and skill.83. In any event, legislation in most jurisdictions requires an agency agreement between client and estate agent to be signed and in writing as a condition of securing a claim to commission,84. thus conveying a contractual flavour. An absence of consideration may indicate that the parties are not contemplating legal relations and thus function as evidence against agency. This need not necessarily be so, as shown by Chaudhry v Prabhakar.85. There the English Court of Appeal held that a man (the defendant) who had located a vehicle for a female friend (the plaintiff) to purchase was an agent of the plaintiff. The court relied on agency to hold the defendant liable for the loss suffered by the plaintiff when the vehicle proved unroadworthy. There was no duty in contract, according to the court, due to a lack of consideration.86. Moreover, there may be cases where a party has simply held itself out as willing to perform a service for another, there being no evidence of any contract to that effect, and the relationship created can be characterised as one of agency. For example, in Norwest Refrigeration Services Pty Ltd v Bain Dawes (WA) Pty Ltd87. the High Court of Australia found a relationship of agency to have been created between a member of a cooperative and the cooperative itself where the latter had held itself out as being prepared to arrange insurance for the member, even though there was no enforceable agreement between the parties requiring the cooperative to obtain the insurance. In such cases it is common for the agent to have acted gratuitously.

80. Walden Properties Ltd v Beaver Properties Pty Ltd [1973] 2 NSWLR 815 John Pty Ltd [2002] WASC 204; BC200204897 approval). 81. [1926] VLR 100 at 110

at 841 per Hutley JA; Slater v Strawberry

at [184], [185] per Hasluck J (citing the first edition of this text with

(emphasis in original).

82. Taylor v Smith [1926] VLR 100 at 111

.

83. As to this duty see 11.23. 84. See 17.5–17.23. 85. [1988] 3 All ER 718

.

86. Yet what must be queried is whether a finding of negligence, not agency, should have founded the defendant's duty: see 11.36–11.39. 87. (1984) 157 CLR 149; BC8400481

. This case is discussed in more detail at 11.52, 11.53.

4.16 Second, aside from the foregoing, scope may exist to create an agency by estoppel, where, lacking a contract, the principal has made a representation to the agent that an agency exists, upon which the agent relies to his or her detriment, from which it would be unconscionable for the principal to resile. Theoretically this is distinct from ostensible authority in an agent — also grounded in estoppel88. — in that the actual agency, not merely the authority, is produced through the vehicle of estoppel. Yet to the extent that the argument is raised by a third party, as opposed to the agent, to establish a claim against an alleged principal, there is unquestionably a considerable overlap between the two.

Page 3 of 4 Non-contractual Agencies 88. See 20.7–20.12.

4.17 Third, the case law recognises entitlements in a principal against an agent that do not rest on any contract between them. For example, it has been held that the general law of agency, independent of any contract, entitles a principal to information regarding the conduct

Page 91 of the agency.89. It also confers on the agent the right to an indemnity against the principal,90. and the right of lien,91. neither of which rests on the law of contract. But the conferral of rights that exist independent of contract is not conclusive against the existence of a contract, which itself carries with it other rights. In any event, entitlements that are said to stem from the law of agency independent of contract may likewise be derived on the grounds of contractual implication.

89. See Yasuda Fire & Marine Insurance Co of Europe Ltd v Orion Marine Insurance Underwriting Agency Ltd [1995] 2 WLR 49

, discussed at 13.2.

90. See 18.8–18.20. 91. See 18.21–18.46.

4.18 Fourth, at general law the owner of a car could be held liable for the negligent driving of the car by another person on the principle qui facit per alium, facit per se — one who acts through another is deemed to act through himself or herself. This relationship has traditionally been characterised as one of agency, the owner as the principal and the driver the agent. For the creation of this agency relationship a legally binding contract of agency was not necessary; an instruction or request from the owner (principal) and an undertaking of the duty or task by the agent was sufficient.92. The artificiality of characterising the owner–driver relationship in this fashion, and the potentially unjust outcome it could generate for the owner, prompted the enactment in each jurisdiction of legislation that extends the owner's insurance policy to cover the driver's liability in addition to the owner's liability.93.

92. Morgans v Launchbury [1973] AC 127

at 140 per Lord Pearson.

93. Road Transport (Third-Party Insurance) Act 2008 (ACT) s 20, Pt 2–2 (who is insured under a Compulsory Third Party Policy); Motor Accidents Compensation Act 1999 (NSW) s 112; Motor Accidents (Compensation) Act 1979 (NT) ss 4(1) (definition of ‘Territory motor vehicle’), 6; Motor Accident Insurance Act 1994 (Qld) s 23, Sch; Motor Vehicles Act 1959 (SA) s 99A(8), Sch 4; Motor Accidents (Liabilities and Compensation) Act 1973 (Tas) s 14(1) (Motor Accidents Insurance Board bound to indemnify ‘an owner or user of a motor vehicle, or his legal personal representatives’ in respect of any non-contractual liability incurred in respect of a personal injury resulting directly from a motor accident); Transport Accident Act 1986 (Vic) s 35 (insurance cover extends to driver or passenger); Motor Vehicle (Third Party Insurance) Act 1943 (WA) ss 3(1) (definition of ‘insured person’), 4(1).

4.19

Page 4 of 4 Non-contractual Agencies Fifth, there are certain recognised relationships of agency, such as that between counsel and client and between donor and donee of a power of attorney, that need not be constituted by contract. For the purposes of the relationship between counsel and client, agency serves to create in counsel the authority to act for the client in curial proceedings, usually including the authority to compromise.94. The authority does not create a cause of action by the client against counsel except in negligence if counsel's conduct is outside the bounds of his or her ‘in-court’ immunity from negligence.95. Powers of attorney do not usually involve a contractual relationship96. and are for that reason constituted by way of deed.97. Also, even if the valid appointment of a sub-agent by an agent does not create a contractual relationship between principal and sub-agent, it may nonetheless attract duties of a tortious or fiduciary character in that context.98.

94. As to the authority of a lawyer to compromise a dispute see 8.31 (implied), 20.57–20.59 (ostensible). 95. As to counsel's immunity from negligence see Dal Pont, Lawyers' Professional Responsibility, [5.225]–[5.310]. 96. Chatenay v Brazilian Submarine Telegraph Co [1891] 1 QB 79

at 85 per Lindley LJ (who described a power of

attorney as a ‘one-sided instrument’); Sinfra Aktiengesellschaft v Sinfra Ltd [1939] 2 All ER 675 (‘A power of attorney is not a contract’).

at 682 per Lewis J

97. See Dal Pont, Powers of Attorney, [4.4]. 98. See 9.13–9.18.

4.20 Finally, it has been queried whether any contract is involved between agent and principal in the agency allegedly created by ratification.99. An influential American commentator early in the twentieth century stressed that the notion of ratification involves a ‘fiction’ because the relations between the parties are treated ‘as if’ the agency preceded the unauthorised act. He characterised ratification as ‘the exercise of a power created in one not a principal by one

Page 92 not an agent, but who purports to be one’.100. The latter statement presumes the lack of any pre-existing agency relationship, which need not necessarily be so in cases of ratification.101. Yet in any event, ratification if viewed from that perspective constitutes a ‘unilateral act of the will’;102. it therefore lacks the relevant contractual or consensual connection between the putative principal and agent. The alternative view is that, although ratification is a one-sided act of the principal, by definition the agent has also acted on the basis that he or she is willing to act as agent for the principal. On this interpretation ratification by the principal constitutes the acceptance of the agent's offer to act as agent in the transaction in question.103. Yet even if so explained, it need not be contractual, as ratification does not require consideration.

99. As to the doctrine of ratification see Ch 5. 100.W A Seavey, ‘The Rationale of Agency’ (1920) 29 Yale LJ 859 at 886. See also Powell, pp 120, 138–9. 101.See 5.2. 102.Harrisons and Crossfields Ltd v London and North Western Railway Co [1917] 2 KB 755 103.Fridman, pp 109–10; Bowstead, p 66.

End of Document

at 758 per Rowlatt J.

Formalities for Appointment Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 4: Agency Created by Agreement > Chapter 4 Agency Created by Agreement

Formalities for Appointment Please click on the link below to download the entire chapter.

General rule

4.21 At general law there is no requirement that the appointment of an agent be made in writing, or adopting a specific form of writing, in order to create a legal relationship between agent and principal, with its consequent rights and obligations, or for the purpose of creating relations with third parties.104. An agency relationship can thus be validly created orally;105. ‘if the facts disclose that one party is acting for or representing another by the latter's authority the agency exists’.106.

104.Rhodes Pty Ltd v Galati [1961] WAR 180 Bank of Australia (1991) 4 ACSR 145 105.Pole v Leask (1860) 54 ER 481 Cranworth).

at 183 per Virtue J; Australian Central Credit Union v Commonwealth

at 147; BC9100520 per King CJ. at 486 per Romilly MR (affd Pole v Leask (1863) 8 LT 645

106.Field v Shoalhaven Transport Pty Ltd [1970] 3 NSWR 96

at 648 per Lord

at 103 per Asprey JA.

Deeds

4.22 Circumstances exist where an agent must be appointed by way of deed. An agent's authority must be in the form of a deed where a principal seeks to authorise the agent to execute a deed on the principal's behalf107. or, except in Victoria,108. to deliver a deed that has already been signed and sealed by the principal.109. There is, however, no need for an agent to be authorised by deed to execute a deed for the principal if its execution is effected in the presence of the principal where the agent executes the deed at the request and on the behalf of the principal.110. The agent in this event acts merely as an amanuensis, and so this is sometimes

Page 93 termed the ‘amanuensis rule’. Nor need an agent be authorised by deed to execute a deed if in the circumstances the law does not require the transaction to be effected by deed.111.

Page 2 of 6 Formalities for Appointment 107.Steiglitz v Egginton (1815) Holt NP 141; 171 ER 193; Berkeley v Hardy (1826) 5 B & C 355; 108 ER 132; Powell v London & Provincial Bank [1893]2 Ch 555 at 563 per Bowen LJ (‘an agent cannot execute a deed … unless he is appointed under seal’). 108.In Victoria the rule as to delivery has been abrogated by statute: Property Law Act 1958 (Vic) s 73B. 109.Powell v London and Provincial Bank [1893] 2 Ch 555

at 563 per Bowen LJ; Windsor Refrigerator Co Ltd v Branch

Nominees Ltd [1961] Ch 88

at 100–3 per Cross J (revd on another point: Windsor Refrigerator Co Ltd v Branch

Nominees Ltd [1961] Ch 375

).

110.Ball v Dunsterville (1791) 4 Term Rep 313; 100 ER 1038 (deed executed for a partner in his presence); R v Inhabitants of Longnor (1833) 4 B & Ad 647; 110 ER 599 (illiterate parties requested a person to execute a deed in their presence). There is case authority in the United States that application of the amanuensis rule is not confined to where an agent signs a contract in the principal's immediate presence, but may also apply when an agent, acting with merely mechanical and no discretionary authority, signs the principal's name outside the principal's presence. See, for example, Ellis v Mihelis, 60 Cal 2d 206 (1963) (where a land purchaser orally authorised his agent, by telephone, to sign a land contract on his behalf, and the California Court of Appeal nonetheless held the contract to be binding because the signature was ‘purely a mechanical act which did not involve the exercise of discretion’: at 214). 111.Hunter v Parker (1840) 7 M & W 322 at 344; 151 ER 789 at 798 per Parke B; Butler v Duckett (1891) 17 VLR 439

.

Statutory formality requirements

4.23 As is the case with contract and trust, statute may make writing a condition of the validity or enforceability of an agency relationship or some aspect of that relationship, which is discussed below. If statute requires an agent's authority to be in writing, an agency created by ratification must be in writing.112. Yet there are good reasons for effecting an agency agreement in writing aside from statutory requirements. At a most basic level, given the general rule that the person who alleges must prove, written memoranda of the agency agreement can assist in effecting this proof. They also serve the valuable purpose of denoting the scope of the agency, in that the passage of time may blunt the accuracy of detailed recollection of instructions, and evidence of conduct itself may be equivocal.113.

112.Jones v Peters [1948] VLR 331 at 335 per Herring CJ. This does not, however, dictate that a valid ratification of the agent's signature need be in writing: Ronald v Lalor (1872) 3 VR (E) 98. As to agency created by ratification see Ch 5. 113.There may also be other reasons for effecting a written agency agreement in certain types of agency. For example, in the lawyer–client agent–principal relationship, there is authority, though not without its judicial detractors, to the effect that, where the evidence consists of the lawyer's word against that of the client, all else being equal, the court will side with the client: see Dal Pont, Lawyers' Professional Responsibility,[3.45].

4.24 Statute may void any purported agreement not effected in accordance with its requirements or it may make such an agreement unenforceable. For example, in Tasmania the legislation that makes an oral contract not to be performed within one year of its creation unenforceable114. applies to agency contracts.

114.Mercantile Law Act 1935 (Tas) s 6.

Page 3 of 6 Formalities for Appointment

4.25 In all jurisdictions, statute requires that no interest in land can be created or disposed of inter vivos except by writing signed by the person creating or disposing of that interest or by his or her agent lawfully authorised in writing.115. This statutory requirement applies also in respect of the disposition of an equitable interest or trust subsisting at the time of the disposition. However, except in the Australian Capital Territory and Victoria, the requirement that the agent be authorised in writing does not apply for the purposes of the legislation that makes certain contracts unenforceable unless they are in writing signed by, inter alia, an agent of the person against whom the contract is sought to be enforced.116. In that situation, that the agent's appointment is not in writing does not prevent the principal or the other party from being able to enforce the contract upon proof of the existence of the agency.117. So, for example, there is no need for an agent engaged to purchase

Page 94 land,118. to procure a loan for a principal upon the security of land,119. or to obtain a lease,120. to be appointed in writing, whether the principal is disclosed or undisclosed.121. In this context, the authorisation of the agent need not be express; the authority may be implied, it may be ostensible,122. or even conferred retrospectively via ratification.123.

115.Civil Law (Property) Act 2006 (ACT) s 201; Conveyancing Act 1919 (NSW) s 23C(1); Law of Property Act 2000 (NT) s 10(1); Property Law Act 1974 (Qld) s 11; Law of Property Act 1936 (SA) s 29(1); Conveyancing and Law of Property Act 1884 (Tas) s 60(2); Property Law Act 1958 (Vic) s 53(1); Property Law Act 1969 (WA) s 34(1). On this legislation and the exceptions to it see Dal Pont, Equity and Trusts, [18.05]–[18.35]; D Everett, ‘Reconciliations of the Statutory Requirements for Writing in Land Transactions’ (1987) 17 UWALR 301; Jacobs, [701]–[712]. 116.Conveyancing Act 1919 (NSW) s 54A(1) (refers to ‘lawfully authorised’); Law of Property Act 2000 (NT) s 62; Property Law Act 1974 (Qld) s 59; Law of Property Act 1936 (SA) s 26(1); Conveyancing and Law of Property Act 1884 (Tas) s 36(1); WA: Statute of Frauds 1677 (UK), 29 Chas II c 3 s 4. Cf Civil Law (Property) Act 2006 (ACT) s 204(1) (which requires the agent to be ‘properly authorised in writing’); Instruments Act 1958 (Vic) s 126 (‘by a person lawfully authorised in writing by that person to sign such an agreement, memorandum or note’). 117.Heard v Pilley (1869) 4 Ch App 548

; Cave v Mackenzie (1877) 37 LT 218 at 219 per Jessel MR; Daniels v

Trefusis [1914]1 Ch 788 ; Nguyen v Taylor [1990] ANZ ConvR 588; BC9002311 ; Chernishoff v Duncan Cotterill & Co [1990] ANZ ConvR 172 (HC(NZ)); Jiao v Barge (2006) 18 PRNZ 396; [2006] NZSC 82 at [3] per the court; McLaughlin v Duffill [2010] Ch 1 [2008] EWCA Civ 1627 at [17]–[24] per Sir Andrew Morritt C, with whom Smith and Aikens LJJ concurred. 118.Cave v Mackenzie (1877) 37 LT 218 at 219 per Jessel MR. 119.Gray v Dalgety & Co Ltd (1916) 21 CLR 509 BC1600040

at 540–5 per Isaacs J, at 552–3 per Higgins J, at 557–8 per Rich J;

.

120.Heard v Pilley (1869) 4 Ch App 548

.

121.As to the doctrine of the undisclosed principal see 19.28–19.47. However, for the principal to be able to enforce the contract for the purchase of the land in circumstances where the agent is not liable as one of the contracting parties, that contract must be in writing, and the principal's name must appear in the memorandum of the contract or the principal's identity from the description of him or her in the memorandum must not be able to fairly be disputed: Lovesy v Palmer [1916] 2 Ch 233

.

122.See, for example, Jiwunda v Trustees of the Travel Compensation Fund (2006) 12 BPR 23,857; [2006]NSWSC 741; BC200605591

at [76]–[80] per Palmer J. As to ostensible authority see Ch 20.

123.See, for example, Maclean v Dunn (1828) 4 Bing 722; 130 ER 947

. As to ratification see Ch 5.

Page 4 of 6 Formalities for Appointment

4.26 Alternatively, under statute a right of one of the parties to the agency may rest on prescribed formalities being fulfilled. For example, statute makes the recovery of commission by certain agents from their principal dependent on a written agency relationship, including in some cases specified terms,124. although this will not usually affect the relationship between the principal and third parties created through the agent.

124.See 17.5–17.23.

4.27 Finally, statute may make it an offence for an agent to act without a written engagement. For example, the Land and Business (Sale and Conveyancing) Act 1994 (SA) makes it an offence for an agent125. to act on behalf of a vendor in the sale of land (other than residential land) or a business, or a purchaser in the sale of land or a business, unless the agent has been authorised to so act by instrument in writing signed by the vendor or the purchaser.126. An equivalent offence applies in Queensland regarding appointments of estate agents, auctioneers and commercial agents.127. Also, statute in the territories and Queensland makes it an offence for a motor dealer to sell a motor vehicle as agent for its owner (termed a ‘sale by consignment’) if the dealer is not authorised in writing for that purpose (unless, in the former two jurisdictions, the owner is a dealer or financier).128.

125.A person is an ‘agent’ for this purpose if the person carries on a business that consists of or involves: (a) selling or purchasing or otherwise dealing with land or businesses on behalf of others, or conducting negotiations for that purpose; or (b) selling land or businesses on his or her own behalf, or conducting negotiations for that purpose: Land and Business (Sale and Conveyancing) Act 1994 (SA) s 3 (referring to Land Agents Act 1994 (SA) s 4(1)). 126.Land and Business (Sale and Conveyancing) Act 1994 (SA) s 20(3). 127.Property Agents and Motor Dealers Act 2000 (Qld) ss 133(1) (estate agents; see, for example, Jones v Knobel & Davis Property Services Pty Ltd [2008] QCA 105

; BC200803147), 210(1) (auctioneers), 344(1) (commercial agents).

128.Sale of Motor Vehicles Act 1977 (ACT) s 31(1), 31(5); Consumer Affairs and Fair Trading Act 1990 (NT) s 172(1), 172(6); Property Agents and Motor Dealers Act 2000 (Qld) s 284(1).

4.28 Where statute requires a signed written agency agreement or some memorandum or note thereof, there is authority that documents signed by agents within their authority can be sufficient evidence to satisfy this requirement even though they were not signed with this object. So, provided that the agent has the authority129. to sign the requisite note or memorandum, it can constitute the requisite evidence even though the document in question was not created for the purpose of satisfying the writing requirements.130. Harman J put it this way in Wright v Pepin:131. ‘[A]n acknowledgment can be made or a memorandum signed by an agent although he does not realise he is signing a memorandum or producing any such effect.’

Page 5 of 6 Formalities for Appointment 129.For this purpose, where the statute refers to an agent being ‘lawfully authorised’, the authority can encompass ostensible authority: Jiwunda v Trustees of the Travel Compensation Fund (2006) 12 BPR 23,857; [2006] NSWSC 741; BC200605591

at [75]–[80]per Palmer J.

130.Griffiths Cycle Corporation Ltd v Humber & Co Ltd [1899] 2 QB 414 Trefusis [1914] 1 Ch 788 2 Ch 487

at 799 per Sargant J; North v Loomes [1919] 1 Ch 378

at 491–3 per Russell J; Wright v Pepin [1954] 2 All ER 52

131.[1954] 2 All ER 52 at 57

at 417 per Smith LJ; Daniels v ; Grindell v Bass [1920]

at 56–7 per Harman J.

.

Formalities for powers of attorney132.

132.For a detailed treatment of this area see Dal Pont, Powers of Attorney, Ch 4.

Formalities

4.29 In New South Wales, Queensland, South Australia and Victoria, a general power of attorney must be created in or to the effect of a prescribed form.133. The Queensland and Victorian legislation adds requirements as to signature by, or by direction and in the presence of, the principal.134. The legislation in the territories and Tasmania prescribe both signature and attestation requirements.135. Western Australia makes no provision as to statutory form for a general power of attorney. The formality requirements for the creation of an enduring power of attorney are, as a general rule, stricter than those applicable to general powers (other than in the Australian Capital Territory, where the requirements are the same). This is chiefly because an enduring power, by definition, operates at a time when the donor has lost mental capacity; hence the need for safeguards to ensure that the donor of the power fully understands the nature and effect of the power at the time it is executed. For this reason, the legislation in each jurisdiction imposes signature and witnessing requirements similar to those applicable to wills as a condition of the validity of an enduring power of attorney.136. Excepting Victoria, also required is a statement of acceptance or the like signed by the donee of the power (being the agent or attorney).

133.Powers of Attorney Act 2003 (NSW) s 8 (although note that upon the commencement of the Powers of Attorney Amendment Act 2013 (NSW) s 8 is replaced with a provision that envisages that an instrument that is in or to the effect of a form prescribed by the regulations creates a ‘prescribed power of attorney’ for the purposes of the Act); Powers of Attorney Act 1998 (Qld) s 11; Powers of Attorney and Agency Act 1984 (SA) s 5(1); Instruments Act 1958 (Vic) s 107(1). Cf Powers of Attorney Act 2000 (Tas) s 18(1) (option of creating power of attorney by deed as opposed to prescribed form). 134.Powers of Attorney Act 1998 (Qld) s 12(1), 12(2); Instruments Act 1958 (Vic) s 106. 135.Powers of Attorney Act 2006 (ACT) ss 19–22 (which apply to both general and enduring powers of attorney); Powers of Attorney Act 1980 (NT) s 6(1)–6(4); Powers of Attorney Act 2000 (Tas) s 18(1), Forms 1 and 2. 136.Powers of Attorney Act 2006 (ACT) ss 19–23; Powers of Attorney Act 2003 (NSW) s 19; Powers of Attorney Act 1980 (NT) ss 13(b), 13(c), 14; Powers of Attorney Act 1998 (Qld) s 44; Powers of Attorney and Agency Act 1984 (SA) s 6(1), 6(2); Powers of Attorney Act 2000 (Tas) s 30(1), 30(2), Forms 3 and 4; Instruments Act 1958 (Vic) ss 123–125B; Guardianship and Administration Act 1990 (WA) s 104.

Registration

Page 6 of 6 Formalities for Appointment

4.30 In each jurisdiction except Victoria and Western Australia provision exists for registration of powers of attorney. In the Northern Territory, New South Wales and Queensland statute expressly recognises that an instrument creating a power of attorney may be registered.137. In New South Wales statute deems a conveyance or deed138. (other than a lease or agreement for a lease for a term not exceeding three years) executed by the donee of a power of attorney pursuant to that power to be unenforceable or invalid until the power of attorney is registered as prescribed.139. Upon registration of the power, such a conveyance or deed takes effect as if the instrument had been registered before the conveyance or deed was executed.140. Northern Territory legislation makes similar provision in respect of dealings in relation to land (other

Page 96 than leases of land for a period of not more than one year)141. as well as requiring the registration of enduring powers of attorney.142. The dedicated powers of attorney legislation in the Australian Capital Territory makes no provision for registration of powers. This is reserved to a more general statute, the Registration of Deeds Act 1957, which vests in a person a discretionary entitlement to enter a deed in the ‘general register of deeds’ maintained by the registrar-general.143. This entitlement is open in the context of a power of attorney because, whether or not a power takes the form of a deed, the Powers of Attorney Act 2006 deems a power of attorney that fulfils the statutory requirements to be a deed.144. Registration of powers of attorney in South Australia is similarly left to registration of deeds legislation,145. which applies to powers of attorney because, inter alia, the powers of attorney legislation requires powers of attorney to be created by deed.146. In Tasmania an act, deed, or instrument done, executed, or signed under a power of attorney by the donee of the power is invalid unless the power of attorney is first registered as an instrument.147.

137.Powers of Attorney Act 2003 (NSW) s 51; Powers of Attorney Act 1980 (NT) s 7(1); Powers of Attorney Act 1998 (Qld) ss 25(1), 25(2) (general powers), 60(1), 60(2) (enduring powers). 138.It follows that the section in question does not apply to a simple contract such as a loan agreement, and nor to a mortgage instrument in the absence of registration: Vickery v JJP Custodians Pty Ltd (2002) 11 BPR 20,333; [2002] NSWSC 782; BC200205296

at [89] per Austin J.

139.Powers of Attorney Act 2003 (NSW) s 52(1). 140.Powers of Attorney Act 2003 (NSW) s 52(2). 141.Powers of Attorney Act 1980 (NT) s 8(1), 8(2). 142.Powers of Attorney Act 1980 (NT) s 13(c). 143.Registration of Deeds Act 1957 (ACT) s 4(1) (which stipulates the means whereby this registration may be effected, most commonly by depositing the deed, or a copy verified by statutory declaration, with the registrar-general), 4(2) (which prescribes requirements relating to verification of the due execution of the deed). 144.Powers of Attorney Act 2006 (ACT) s 29(1). 145.Registration of Deeds Act 1935 (SA). 146.Powers of Attorney and Agency Act 1984 (SA) s 5(1). 147.Powers of Attorney Act 2000 (Tas) s 16 (the registration being effected under Pt 3 Div 2).

End of Document

Joint Appointments Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 4: Agency Created by Agreement > Chapter 4 Agency Created by Agreement

Joint Appointments Please click on the link below to download the entire chapter.

Co-principals

4.31 Where two or more persons (co-principals) give authority to an agent, that authority is presumed to be a joint authority to act for them. This dictates that the co-principals can jointly sue the agent for the agent's defaults,148. are jointly liable to the agent in respect of the agent's rights,149. and must each ratify an agent's unauthorised acts to be bound.150. The presumption can be rebutted by evidence inconsistent with its application, usually by reference to the terms of the agreement conferring the authority construed in their context. For example, the agent's duty to account151. is discharged only upon accounting to all the co-principals, unless the agency agreement provides to the contrary or the co-principals are also partners.152. Determining whether an appointment is joint, as opposed to joint and several, is also important so far as the termination of agency is concerned. As a general principle, the authority of an agent derived from joint principals who are jointly interested in its execution is terminated by the death of one of the principals unless the appointment indicates otherwise. In Cox v Goldcrest Developments (NSW) Pty Ltd153. the issue was whether a power of attorney granted by A and B (being husband and wife, Mr and Mrs Jeffrey) to C (the plaintiff, Mrs Cox) terminated on A's death. The court's task, according to Young J, was to construe the power ‘to see whether it is a power given by the jointure of the husband and wife or by each of them

Page 97 severally’.154. Though there were indications both ways, his Honour held that the power had been granted jointly and severally, reasoning as follows:155. In the instant case there is evidence that the property was jointly owned, so that one could reasonably expect the power of attorney to be a power of attorney which would operate jointly whilst both survived and then for the survivor. There is also the use of the word ‘my’ in the power of attorney and the additional evidence by conduct that since the death of Mr Jeffery, Mrs Jeffery has on at least 10 occasions been involved in discharging mortgages through her attorney, Mrs Cox. Mrs Cox has met with Mrs Jeffery. Both the solicitors and Mrs Cox have reported to Mrs Jeffery what they are doing and Mrs Jeffery has always indicated complete satisfaction. On all these matters it is clear that the power of attorney was intended to operate and does operate as a grant of authorisation by Mr and Mrs Jeffery jointly and severally. This being so, the death of Mr Jeffery does not terminate Mrs Cox's authority to act for Mrs Jeffery.

148.Skinner v Stocks (1821) 4 B & Ald 437; 106 ER 997; Cothay v Fennell (1830) B & C 671; 109 ER 599; Jones v Cuthbertson (1873) LR 8 QB 504 . As to the duties owed by agents to principals see Pt IV. 149.Keay v Fenwick (1876) 1 CPD 745. As to agents' rights against their principals see Pt V. 150.Ratification is discussed in Ch 5.

Page 2 of 5 Joint Appointments 151.As to agents' duty to account to their principals see Ch 13. 152.Innes v Stephenson (1831) 1 M & R 145; 174 ER 50; Heath v Chilton (1844) 12 M & W 632; 152 ER 1352; Lee v Sankey (1873) LR 15 Eq 204 . 153.(2000) 50 NSWLR 76; [2000] NSWSC 763; BC200004323

.

154.Cox v Goldcrest Developments (NSW) Pty Ltd (2000) 50 NSWLR 76; [2000] NSWSC 763; BC200004323 155.Cox v Goldcrest Developments (NSW) Pty Ltd (2000) 50 NSWLR 76; [2000] NSWSC 763; BC200004323 [16] (paragraph break omitted).

at [11]. at [15],

Co-agents

4.32 A principal can authorise co-agents to act on his or her behalf unless prohibited by a contractual commitment or by statute.156. As with co-principals, it must be determined whether the appointment of co-agents is intended to be only joint, or alternatively, joint and several. The difference is significant, because an authority given jointly and severally may be acted upon by any or all of the co–agents so as to bind the principal.157. A joint authority can be acted upon only by the co-agents jointly,158. although it must be noted that even a joint authority does not prohibit co-agents from appointing a sub-agent to implement a decision they have made jointly. This does not conflict with the nondelegation rule159. because it involves no more than the delegation of a ministerial act.160. Brennan CJ and McHugh J made the point in Kendle v Melsom in the context of the joint appointment of receivers:161. [W]e are unable to appreciate why it may be thought that a power conferred on a plurality of receivers jointly should require every decision and every act, however trivial, to have the concurrence of all appointees. No doubt a requirement of conscious concurrence in each exercise of power would often frustrate the purpose of appointing a plurality of receivers and managers but the powers usually reposed in receivers would permit of their exercise in detailed, day-to-day functions by one or more of the plurality or by an agent appointed in that behalf. The powers are

Page 98 reposed in the plurality jointly because they must together resolve on the general course of the receivership and because they are to be jointly liable for the discharge of the duties of receiver and manager. But the implementation of their resolution of the course of the receivership can be left to one of their number or, if they so determine, to some agent appointed for that purpose.

The joint, as opposed to joint and several, appointment of co-agents assumes significance also in the context of the revocation or termination of the agents' authority to represent the principal. As a general principle, where the terms of the appointment can be construed to empower the one of (say) two co-agents to act separately, its revocation in relation to one co-agent does not revoke the authority in relation to the other co-agent. The outcome is different where the appointment prescribes the exercise of authority as joint, in which case the revocation of one co-agent's authority revokes the other's authority.162.

156.See, for example, Kendle v Melsom (1998) 193 CLR 46; BC9800311 , where it was held that a mortgagee had power to appoint multiple receivers (co-agents) according to the terms of the security instrument. The High Court derived this power from a clause in the instrument that stated ‘words importing the singular number or plural number shall include the plural number and singular number respectively’. Nevertheless, it appears from the court's approach generally that it would only be in circumstances where the instrument expressly or through necessary implication denied such a power that multiple receivers could not be appointed. See also Powers of Attorney Act 2006 (ACT) s 25, which provides that a principal may, under a power of attorney, authorise two or more attorneys by: (a) authorising the

Page 3 of 5 Joint Appointments attorneys to act together or separately, or in any combination; and/or (b) authorising different attorneys to act in different circumstances, on the happening of different events or in relation to different matters. 157.Guthrie v Armstrong (1822) 5 B & Ald 628 at 629; 106 ER 1320 at 1320 per Abbott CJ (where a power of attorney given by an underwriter to a plurality ‘jointly and separately’ was held to be a power ‘given to all or any of them to sign such policies, as all or any of them should think proper’). See also Instruments Act 1958 (Vic) s 119(2) (if a donor of an enduring power of attorney appoints two or more joint attorneys, all the attorneys can act only if they all agree and any documents must be signed by all of them), 119(3) (if two or more joint and several attorneys are appointed: (a) all the attorneys can act together if they all agree and any documents can be signed by all of them; or (b) any of the attorneys can act and sign documents together or alone). 158.Brown v Andrew (1849) 18 LJQB 153

.

159.See 9.1. 160.See 9.19–9.22. 161.(1998) 193 CLR 46 at 54; BC9800311

.

162.This principle is reflected by statute, in the context of powers of attorney, in the Australian Capital Territory and Victoria: Powers of Attorney Act 2006 (ACT) ss 65, 66; Instruments Act 1958 (Vic) s 125R.

4.33 If the terms of the agency do not state whether the agents' appointment is joint, or rather joint and several, the law has generally presumed that it is a joint authority.163. Although this presumption awaits the full endorsement of Australian courts,164. Australian authority supports that a power expressly conferred ‘jointly and severally’ need not be exercised jointly. This was the upshot of the judgments of Gummow, Kirby and Hayne JJ in Kendle v Melsom,165. a case involving the ‘joint and several’ appointment of the two respondents as receivers. Yet Hayne J's judgment suggests that even had the appointment been stated as ‘joint’, he would have interpreted it so as to allow the receivers to act separately.166. His Honour justified this on the basis that a joint and several appointment would cause to the mortgagor no significant disadvantage, adding that the possibility of overlapping and possible conflicting actions and decisions by receivers with several authority ‘should not be overstated’.167. Brennan CJ and McHugh J adopted a view diametrically opposed to that of the other judges. Although their Honours supported the proposition that powers conferred on a plurality of receivers are presumed to be exercised jointly in the absence of express or implied terms to the contrary, they held that merely because receivers are appointed ‘jointly and severally’ does not mean that any or all of their powers can be exercised individually by one of them. According to their Honours, whether particular powers are to be exercised jointly depends on the nature of those powers. On the facts, these included the power to take possession and get in the whole of the mortgaged premises, to carry on the business of the mortgagor, to sell all or any of the mortgaged premises and to employ agents to implement such decisions. Brennan CJ and McHugh J held that such powers must be exercised jointly, reasoning as follows:168.

Page 99 These are powers which, by their nature, must be exercised in an orderly manner for the purposes of the receivership. It is absurd to think that the receivership could proceed without the receivers agreeing on the course to be pursued in respect of the property which they were appointed to receive. The powers which the bank is authorised to confer on a plurality could not be exercised by two or more persons acting independently one of the other. If a plurality of repositories of these powers exercised them independently one of the others, chaos could result. One may desire to take possession today, another tomorrow; one may carry on business in a particular way or sell particular property, another may carry on business in a different way or retain property from sale. And so on. That could not have been the intention of either [the mortgagor] in giving or the bank in taking the charge.

Notwithstanding the judicial differences in opinion in Kendle v Melsom, what the case shows is that whether coagents are to act jointly, or jointly and severally, depends on both the terms of the agency construed in their context and the nature of the agency relationship in issue. The point is illustrated by Re Peat Resources of Australia Pty

Page 4 of 5 Joint Appointments Ltd,169. another case involving receivers. There the Australian Securities and Investments Commission (ASIC) issued an authorisation for the purposes of the Corporations Act 2001 (Cth) under which ‘the National Australia Bank Ltd and the Receivers’ could make a certain application under the Act in relation to companies in receivership. Whether the bank and the receivers were to act jointly, or whether the receivers alone or the bank alone could make the application, depended on the meaning of the word ‘and’ in the authority. Though the word ‘and’ is, in ordinary parlance, used conjunctively (suggesting a joint authority was intended), the Full Court of the Western Australian Supreme Court noted that it can, depending on the context, be construed disjunctively.170. What led the court to rule that the latter was intended in the circumstances appears in the following extract from the judgment of Malcolm CJ:171. [A]lthough in many respects the interests of the Bank and the Receivers were common, they were not entirely common because of the duty of the Receivers to act on behalf of the chargor under an instrument. In addition, the context in which the authorisation was given is relevant, namely, the authorisation to make an application for an order for examination. What would be the practical reason why an application for an order for examination could only be made if the Receivers and the Bank jointly applied, bearing in mind that the Bank was the appointor of the Receivers? Such a construction affords no protection and responds to no identifiable difficulty or concern on the part of the regulatory authority. Consequently, there would be nothing in the character of the two parties authorised to lead to the conclusion that a joint application between the Bank and the Receivers was required, as distinct from an authority granted to the Bank, on the one hand, and an authority granted to the Receivers, on another.

It followed that the bank and receivers were authorised to act either separately or together, this being a construction consistent with both the practicalities of the scenario and purpose of the grant of authority under the Corporations Act.

163.Brown v Andrew (1849) 18 LJQB 153 ; White v Tyndall (1888) 13 App Cas 263 at 269 per Lord Halsbury LC; Re Liverpool Household Stores Association (Ltd) (1890) 59 LJ Ch 616 at 624–5 per Kekewich J. This presumption is reflected in the Powers of Attorney Act 2006 (ACT) s 26, which provides that if two or more attorneys are authorised under a power of attorney in relation to a matter, and the power of attorney does not state how they are to share a power given to them, ‘the attorneys are authorised to exercise the power together but not separately’. 164.For example, in Kendle v Melsom (1998) 193 CLR 46 at 69; BC9800311 Hayne J, rather than endorsing such a presumption, phrased his statement in terms of ‘if there is some presumption that an authority given to two or more persons is given to them jointly’ (emphasis supplied), a point his Honour did not decide on. Cf Harvey v Burfield (2002) 84 SASR 11; [2002] SASC 314; BC200205509 at [55]–[60] per Perry J (who held that the appointment of several liquidators should be construed as a joint appointment unless this was inconsistent with statute; on the facts such an inconsistency emanated from the Corporations Act 2001 (Cth) s 506(4), which reads: ‘When several liquidators are appointed, any power given by this Act may be exercised by such one or more of them as is determined at the time of the appointment, or in default of such determination, by any number not less than two.’).See further J O'Donovan, ‘The Power to Appoint Receivers and Managers with Joint and Several Authority’ (1998) 16 C&SLJ 566 at 569–70. 165.Kendle v Melsom (1998) 193 CLR 46

at 64–5 per Gummow and Kirby JJ, at 68–70 per Hayne J; BC9800311.

166.Kendle v Melsom (1998) 193 CLR 46 at 68–70; BC9800311 167.Kendle v Melsom (1998) 193 CLR 46 at 70; BC9800311

. .

168.Kendle v Melsom (1998) 193 CLR 46 at 52–3; BC9800311 169.(2004) 181 FLR 454; [2004] WASCA 122; BC200403555

. .

170.Re Peat Resources of Australia Pty Ltd (2004) 181 FLR 454; [2004] WASCA 122; BC200403555 Malcolm CJ, at [112] per McKechnie J. 171.Re Peat Resources of Australia Pty Ltd (2004) 181 FLR 454; [2004] WASCA 122; BC200403555 at [115] per McKechnie J.

at [23] per

at [34]. See also

Page 5 of 5 Joint Appointments

4.34 So far as receivers are concerned, though, the issue has since been addressed by statute. The Corporations Act 2001 (Cth), as amended by the Corporations Amendment (Insolvency) Act 2007 (Cth), makes express provision to the effect that where two or more persons have been appointed as receivers (or as receivers and managers) of property of a company, a function or power of a receiver (or receiver and manager) may be performed or exercised by any one of them, or by two or more of them together, except so far as the order or the instrument appointing them otherwise provides.172.

172.Corporations Act 2001 (Cth) ss 434D (receivers), 434E (receivers and managers).

4.35 Instead of appointing co-agents jointly, or jointly and severally, a principal may appoint co-agents on the basis that the principal will only be bound by an act of the agents

Page 100 if a quorum regarding that act is met.173. If the authority in question is of a public nature, the act of the majority will bind the minority except where the terms of the agency or statute provide otherwise.174. The latter has been so at least since 1741, stemming from the decision of Attorney-General v Davy,175. a case that stands as authority for the following proposition:176. [Where a number of persons are entrusted with powers not of a mere private confidence but in some respects of a general nature and all of them are regularly assembled, the majority will conclude the minority and their act will be the act of the whole.

173.Brown v Andrew (1849) 18 LJQB 153

; Kirk v Bell (1851) 16 QBD 290

Stores Association (Ltd) (1890) 59 LJ Ch 616 174.Atkinson v Brown [1963] NZLR 755 Panel [1971] 2 QB 216 175.(1741) 2 Atk 212; 26 ER 531

at 765–6 per North J; Picea Holdings Ltd v London Rent Assessment

at 222–5 per Lord Parker CJ. .

176.Grindley v Barker (1798) 1 B & P 229 at 236; 126 ER 875 at 879 per Eyre CJ.

End of Document

; 117 ER 890; Re Liverpool Household

.

Chapter 5 Agency by Ratification Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 5: Agency by Ratification Page 101

Chapter 5 Agency by Ratification [Current to September 2013] Please click on the link below to download the entire chapter. Nature of Ratification

5.2

Definition

5.2

Consequences

5.3

Distinguished from ratification in contract law

5.4

Distinguished from ostensible authority

5.5

Distinguished from estoppel

5.6

Elements of Ratification

5.7

‘The agent whose act is sought to be ratified must have purported to act for the principal’

5.8

General principle

5.8

Rationale

5.9

Identity of ratifying party

5.10

‘At the time the act was done the agent must have had a competent principal’

5.11

‘At the time of the ratification the principal must be legally capable of doing the act himself’

5.14

General rule

5.14

Void acts — no ratification of a legal nullity

5.15

Voidable acts

5.17

Application to torts

5.18

Need for knowledge in the putative principal

5.19

Generally

5.19

Onus

5.21

Ratification without full knowledge

5.22

Page 2 of 3 Chapter 5 Agency by Ratification Ratification to be effected within a reasonable time

5.23

Writing requirements

5.26

Evidence of Ratification

5.27

Express ratification

5.27

Implied or inferred ratification

5.28

Evidence of implied or inferred ratification

5.29

Conduct not amounting to ratification

5.30

Ratification by acquiescence or delay

5.31

Prospective ‘ratification’ clauses in powers of attorney Effect of Ratification on the Agent

5.33 5.34

Rights of principal against agent

5.35

Rights of third parties against agent

5.38

Page 102 Extent of authority conferred by ratification Extent of Retrospective Effect

5.39 5.40

General rule

5.40

Estates that have vested cannot be divested — the Bird v Brown limitation

5.41

Offer withdrawn prior to ratification — the Bolton case

5.43

Justifications for the Bolton approach

5.44

Application to insurance contracts

5.45

Drawbacks of the Bolton approach

5.46

Conclusion

5.48

Contracting ‘subject to ratification’

5.49

Act undone or cancelled by purported agent

5.50

Ratification of legal proceedings commenced by agent

5.51

Partial Ratification

5.53

Proscription against partial ratification

5.53

Pre-contractual statements by agent

5.55

Page 3 of 3 Chapter 5 Agency by Ratification

5.1 Authority pursuant to an existing agency relationship (‘antecedent authority’) is not the only means whereby the incidents of an agency relationship can arise. An agency can be established by subsequent ‘ratification’.Where there is no existing agency relationship or where an agency relationship exists but the agent does an act on behalf of the principal that is outside the agent's actual authority, the ramifications of an agency relationship can arise (and so it is said an agency is ‘created’) by way of ratification by the principal of the agent's otherwise unauthorised acts.

End of Document

Nature of Ratification Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 5: Agency by Ratification > Chapter 5 Agency by Ratification

Nature of Ratification1.

1.

See generally G Procaccia, ‘On the Theory and History of Ratification in the Law of Agency’ (1978) 4 Tel Aviv U Studies in Law 9.

Please click on the link below to download the entire chapter.

Definition

5.2 The nature of ratification is captured by the following statement of Herring CJ in Jones v Peters:2. [T]he relation of principal and agent can of course be constituted retrospectively by ratification, where the act has been done by one person not assuming to act on his own behalf but for another though without his precedent authority and that the other subsequently ratifies what has been done on his behalf but without his authority.

Importantly, ratification can also serve to legitimise the action of an agent under an existing agency if that action is outside the agent's authority. It operates retrospectively; if a principal gives an agent prospective authority,3. whether express or implied,4. there is no need for

Page 103 ratification to create the agency relationship because it already exists.5. A principal may wish to ratify the unauthorised act of another person on his or her behalf where the transaction effected thereby is beneficial to the principal, or where the principal wishes to render the ‘agent’ accountable for a profit made as a result of the transaction in breach of fiduciary duty.6.

2.

[1948] VLR 331 at 335

3.

Cf powers of attorney that contain ‘prospective ratification clauses’: see 5.33.

4.

Cf Midland Bank Ltd v Reckitt [1933] AC 1 at 18 per Lord Atkin, who remarked that ‘a ratification in advance seems to contradict the essential attributes of ratification as generally understood’.

5.

To this end, ratification should not be confused with implied authority (which is discussed in Ch 8), including authority implied from a course of previous dealing between principal and agent, which remains a form of actual (existing) authority: United States v Fulcher, 188 F Supp 2d 627 at 636 (WD Va, US District Ct 2002).

6.

As to breaches of fiduciary duty of this kind see 12.2–12.20.

Consequences

.

Page 2 of 4 Nature of Ratification

5.3 A principal who has validly ratified the act in question is then subject to the legal consequences of that act as if it had been effected by an agent properly authorised to do that act on the principal's behalf. To this end, ratification is an exception to the doctrine of privity of contract,7. which dictates that only persons who are parties to a contract (acting either personally or by an authorised agent) can sue or be sued on the contract; a stranger cannot enforce the contract, nor can it be enforced against a stranger. In fact, in Keighley, Maxstead & Co v Durant8. Lord Macnaghten described the doctrine of ratification as ‘[t]he most remarkable exception’ to the privity doctrine, characterising it as ‘a wholesome and convenient fiction’ by which ‘a person ratifying the act of another, who, without authority, has made a contract openly and avowedly on his behalf, is deemed to be, though in fact he was not, a party to the contract’. Also, a principal who has validly ratified an unauthorised act cannot thereafter unilaterally revoke the ratification. In this regard, ratification differs from actual authority, which the principal can unilaterally revoke (albeit potentially in breach of the agency agreement), the reason being that ratification follows an interaction between the agent and third parties that has already occurred, whereas revocation of actual authority relates to actions that the agent has not yet taken. The latter do not, as a result, have the potential to adversely affect the legitimate claims of innocent third parties, whereas a revocation of ratification may have this effect.9.

7.

Davison v Vickery's Motors Ltd (in liq) (1925) 37 CLR 1 at 19; BC2500013 statement of law.

8.

[1901] AC 240

per Isaacs J in dissent, but not on this

at 246, 247. See also Davison v Vickery's Motors Ltd (in liq) (1925) 37 CLR 1 at 19; BC2500013

per Isaacs J in dissent, but not on this statement of law (‘On ratification and not before the agreement is as a general rule deemed by a fiction to have been made by his antecedent authority to the person actually making it’). 9.

Restatement (3d) §4.02, Comment b.

Distinguished from ratification in contract law

5.4 Ratification for the purposes of agency law serves to create a legal relationship, with its consequent duties and entitlements, between the principal and a third party. The term ‘ratification’ is also sometimes used as a synonym for affirmation in contract, and its use in that context must be distinguished from its use and effect in agency law. A contract that is voidable at the instance of the innocent party — whether for undue influence, misrepresentation, mistake or some other vitiating factor — can be affirmed or ‘ratified’ by that party, which serves to validate the contract.10. Ratification in contract thus involves a specific application of the general principle of election between inconsistent rights. It does not create a legal relationship between the parties — a legal relationship already exists — but serves to estop the innocent party from denying this. On the other hand, ratification in agency law instead serves to create a

Page 104 legal, most commonly contractual,11. relationship where one did not previously exist. A person who goes through the steps of ratifying an agent's acts ‘will usually be seeking to extend his rights, by seeking an advantage for himself over and above what he would have absent the ratification’.12. Ratification in both contract and agency law requires an unequivocal act with knowledge in the person alleged to have ratified,13. although for different reasons. Freedom of contract dictates that persons who enter contracts have fully consented to do so, and so for a contract effected without such consent to be treated in law as valid requires the court to look for an understanding and action by the person originally lacking that consent that is demonstrative of his or her intention that the contract be validated. Agency law assumes that a person (A) who confers authority

Page 3 of 4 Nature of Ratification on another person (B) to do an act or acts on A's behalf does not intend to be liable for the legal consequences of acts effected by B outside of that authority (unless A can be said to have ‘held out’ B as having authority beyond the actual authority).14. Hence for A to be attributed an intention inconsistent with this requires clear evidence to that end.15.

10. See, for example, Allmed Pty Ltd v Opak Investments Pty Ltd (in liq) [1995] ANZ ConvR 153 at 157–8; BC9400713 per Mullighan J (conduct amounting to affirmation of contract induced by misrepresentation of the agent). 11. As to non-contractual agencies see 4.14–4.20. 12. SEB Trygg Liv Holding Atkiebolag v Manches [2006] 1 All ER 437; [2005] EWCA Civ 1237 at [46] (emphasis in original).

per Buxton LJ

13. As to the requirement of knowledge in agency ratification see 5.19–5.22. 14. That is, having conferred upon B ostensible authority, as to which see Ch 20. 15. See 5.27–5.32.

Distinguished from ostensible authority

5.5 Ratification must be distinguished from ostensible or apparent authority. An agent may be ‘held out’ by the principal to a third party (or to third parties generally) as having authority to act on the principal's behalf in a manner that exceeds the actual authority conferred by the principal on the agent.16. In such a case, the principal is bound by the acts of the agent within that so-called ‘ostensible’ or ‘apparent’ authority through the vehicle of estoppel; the principal is estopped from denying the agent's authority consistent with the ‘holding out’ (or representation) by the principal. No actual agency is created because agency can be created only by antecedent authority or subsequent ratification.17. Hence, the principal retains an action against the agent for acting beyond the agent's actual authority. Ostensible authority affects the principal's relationship with third parties, not his or her relationship with the agent.18. Ratification of an unauthorised act, on the other hand, has the effect of creating an agency relationship; there is no need for estoppel. Importantly, ratification affects both the principal's relationship with third parties (a principal can sue and be sued in respect of the unauthorised act of an agent that the principal has ratified) and the principal's relationship with the agent. To this end, a principal who ratifies an agent's unauthorised act, whether or not within the agent's ostensible authority, as a general rule thereby loses any cause of action he or she may have had against the agent for acting beyond authority.19. Thus it is possible for a principal to ratify an act within the agent's ostensible authority, and so create an enforceable legal agency relationship with a third party.

16. As to the doctrine of ostensible authority see Ch 20. 17. See 4.1. 18. See 20.3, 20.4. 19. See 5.35–5.37.

Distinguished from estoppel

5.6

Page 4 of 4 Nature of Ratification Unlike the doctrine of estoppel, ratification requires proof of neither a representation nor of detriment. This is because ‘[r]atification is a unilateral act of the will, namely, the approval after the event of the assumption of an authority which did not exist at the time’.20. Ratification

Page 105 by the principal need not have been communicated to the third party (although it may have been),21. provided that the agent has, in his or her dealings with the third party, acted on behalf of the principal.22. There is no injustice in holding the third party to the dealing in question upon the principal's ratification because that party intended and believed at the outset that he or she was dealing with the principal. Communication of the ratification is therefore unnecessary. It is for this same reason that proof of detriment suffered by the third party is not a prerequisite for a valid ratification.23. At a most basic level, absence of a need for a representation of itself negates any need for proof of detriment in reliance on the representation. In any event, it is difficult to see what detriment a third party may suffer from the principal ratifying the agent's act given that the third party believed he or she was dealing with the principal; ratification by the principal serves to fulfil as opposed to frustrate or deny the third party's belief. Where ratification is implied or inferred by the principal's silence or acquiescence with full knowledge of all the material circumstances,24. it has on occasion been described as an estoppel by acquiescence.25. This reflects more a confusion and potential overlap between the concepts of estoppel and acquiescence than a correct use of the term estoppel. Ratification implied from conduct or from an omission to act is as much a ratification as by express words, and so does not require the doctrine of estoppel to substantiate it. To introduce estoppel, therefore, is unnecessary and potentially misleading, for it carries with it connotations of detriment and representation and can serve to confuse ostensible authority with ratification.

20. Harrisons & Crossfield Ltd v London & North-Western Railway Co [1917] 2 KB 755

at 758

per Rowlatt J.

21. Since the intention to ratify must be manifested in some way, in practice it will often be communicated to and relied upon by the other party to the transaction: Yona International Ltd v La Reunion Francaise SA d'Assurances [1996] 2 Lloyd's Rep 84 at 106 per Moore-Bick J. 22. As to the non-applicability of the doctrine of ratification in the case of an undisclosed principal see 19.46, 19.47. 23. Australian Blue Metal Ltd v Hughes (1961) 79 WN (NSW) 498 at 515

per Jacobs J.

24. See 5.31, 5.32. 25. See, for example, Sinclair v Hudson (1995) 9 BPR 16,259 at 16,262–3; BC9505359

End of Document

per Windeyer J.

Elements of Ratification Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 5: Agency by Ratification > Chapter 5 Agency by Ratification

Elements of Ratification Please click on the link below to download the entire chapter.

5.7 In Firth v Staines26. Wright J identified three prerequisites for a valid ratification: first, ‘the agent whose act is sought to be ratified must have purported to act for the principal’; second, ‘at the time the act was done the agent must have had a competent principal’; and third, ‘at the time of the ratification the principal must be legally capable of doing the act himself’. It must be noted, however, that this third element remains the subject of conflicting authority, and it may be that the principal need only have had the capacity to do the act at the time when it was in fact done. In addition to these three elements, valid ratification rests upon: knowledge in the principal of the facts and circumstances pertaining to the agent's unauthorised act; the ratification being effected within a reasonable time; and, in some circumstances, the fulfilment of writing requirements. Each of these elements is addressed in turn below.

26. [1897] 2 QB 70 at 75 . See also Attorney-General v Wylde (1946) 47 SR (NSW) 99 at 109 per Davidson J; Boston Deep Sea Fishing Co v Farnham [1957] 3 All ER 204 at 209 per Harman J; Quarante Pty Ltd v Owners Strata Plan No 67212 (2009) NSW Titles Cases ¶80-128; [2008] NSWCA 258; BC200810046 at [110] with whom Campbell and Bell JJA concurred.

per Sackville AJA,

‘The agent whose act is sought to be ratified must have purported to act for the principal’ General principle

5.8 The House of Lords in Keighley, Maxstead & Co v Durant27. established that a contract made by a person purporting or professing to act on his or her own behalf alone, and not with the authority or on behalf of the principal, but having an undisclosed intention to give the

Page 106 benefit to a third party, could not be ratified or adopted by that third party so as to render him or her able to sue or be sued on the contract. This case has been followed in Australian courts, the relevant principle being stated as follows:28. [T]here can be no ratification of a contract by a person sought to be made liable as a principal, unless the person who made the contract professed to be acting on behalf of the other at the time, and unless the person sought to be made liable afterwards adopted the contract — that is to say, has ratified it.

Page 2 of 15 Elements of Ratification

So for ratification to be effective the act ratified must purport to be done by an agent for the person who ratifies. For example, in Rowe v B & R Nominees Pty Ltd29. W forged a mortgage of property of the plaintiff through which he obtained a loan of £7000. The plaintiff, once aware of the forgery, later executed another mortgage over the same property in favour of the same mortgagor in substitution for the original mortgage, and paid instalments of interest on it. Gillard J held that because W, in forging the first mortgage, was not purporting to act for the plaintiff, the plaintiff could not ratify the forgery.30.

27. [1901] AC 240

.

28. Crowder v McAlister [1909] St R Qd 203 at 206 per Cooper CJ. See also at 207 per Real J; Jones v Hope (1880) 3 TLR 247n at 251 per Brett LJ (‘nobody can ratify a contract purporting to be made by an agent except the party on whose behalf the agent purported to act’); Marsh v Joseph [1897] 1 Ch 213 at 246 per Lord Russell CJ; McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835 at 857–8

per Griffith CJ; Howard Smith & Co Ltd v Varawa (1907) 5 CLR68;

BC0700018 (where the High Court held that in an action upon a contract of sale, involving a number of special terms and conditions subsidiary to the main transaction, for the owners to rely upon the ratification of the contract by their agent, the owners must establish that the agent professed to be acting as an authorised agent for the owners in respect of the whole bargain); Eastern Construction Co Ltd v National Trust Co Ltd & Schmidt [1914] AC 197 at 213 (PC); Imperial Bank of Canada v Begley [1936] 2 All ER 367 at 374

per Lord Maugham; Davjoyda Estates

Pty Ltd v National Insurance Co of New Zealand Ltd [1965] NSWR 1257 at 1264

per Brereton J; Concrete

Constructions Pty Ltd v Government Insurance Office of New South Wales [1966] 2 NSWR 609 at 617 per Macfarlan J; Sharp v Sphere Drake Insurance plc (The ‘Moonacre’) [1992] 2 Lloyd's Rep 501 at 515 per A D Colman QC; Moore Park Gardens Management Pty Ltd v Chief Commissioner of State Revenue (2004) 56 ATR 417; [2004] NSWSC 417; BC200403269 at [32], [33] 29. [1964] VR 477

per Gzell J.

. See also to the same effect Brook v Hook (1871) 6 LR 6 Ex 89.

30. It must be queried whether a forgery can in any event be ratified: see 5.15.

Rationale

5.9 That an undisclosed principal should not legitimately be able to ratify a contract effected by his or her agent in excess of authority can be justified on the basis that the other party to the contract, being unaware that the agent purports to contract on behalf of a principal, cannot have intended to contract with the principal. To permit the principal to ratify such a contract would render the third party liable to deal with a person with whom he or she did not intend to deal. Yet the law, for commercial expediency, sanctions such an anomalous outcome where an agent contracts on behalf of an undisclosed principal within his or her actual authority.31. This outcome can be justified because an agency relationship governing the transaction already exists. The third party bears the consequences of such a relationship. The courts' unwillingness to recognise this outcome in the case of a purported ratification thus arguably stems from an unwillingness to add another anomaly to the law, namely the fiction inherent in the doctrine of ratification.32. Of itself, though, this is hardly a principled justification, and there seems little reason in principle why undisclosed principals should be able to enforce a contract effected within an agent's authority but not ratify a contract effected in excess of that authority.33. It is therefore unsurprising that Keighley has hardly received the unqualified endorsement of

Page 107 commentators.34. And United States law now appears to have shifted to allowing an undisclosed principal to ratify, for the following compelling reasons:35.

Page 3 of 15 Elements of Ratification

It is not necessary so to limit the availability of ratification. First, the limitation is not necessary to prevent a person who is a stranger to a transaction from attempting to claim its benefit by ratifying. An undisclosed principal is not a stranger to the agent. Second, whether to ratify is a choice an undisclosed principal should be free to make. An undisclosed principal's ratification creates rights and obligations applicable to principal, agent, and third party … Finally, the fact that a third party does not expect the undisclosed principal's liability at the time the agent acts is no more persuasive an argument against ratification than it is against the general proposition that a third party may hold an undisclosed principal liable … The third party is not disadvantaged by recognizing ratification by an undisclosed principal. When a principal is disclosed or unidentified, and the agent's act does not bind the principal, the principal's ratification may result in the loss of claims the third party could otherwise assert against the agent for breach of warranties of authority … Offsetting the loss is the principal's assent to be bound by the agent's act … An undisclosed principal's ratification does not eliminate the agent's liability to the third party on the transaction because an agent for an undisclosed principal has such liability when acting with actual authority … The effect of ratification is to add the undisclosed principal as a party with rights and obligations stemming from the transaction.

As Australian law stands, however, the non-availability of ratification to undisclosed principals operates as a limitation to the general principle that ‘[r]atification is equivalent … to original authority’.36.

31. See 19.28–19.47. 32. This was the reasoning given by Lord Davey in Keighley, Maxstead & Co v Durantv [1901] AC 240 See also at 262–3 per Lord Lindley.

at 256

.

33. Perhaps there is the concern that were undisclosed principals permitted to ratify, they could take the benefit of the agent's act, and yet, should they elect not to do so, can rest assured that the other party will not look to the principal for performance of that bargain. Yet even this does not serve as a convincing explanation. 34. See, for example, Stoljar, pp 199–201 (who criticises Keighley as being inconsistent with earlier authority and for being at fault in theory); A Rochvarg, ‘Ratification and Undisclosed Principals’ (1989) 34 McGill LJ 286 especially at 315–35 (who, following an analysis of the justifications for the doctrine of the undisclosed principal, concludes that those justifications are more consistent than not with its operation in cases of ratification). 35. Restatement (3d) §4.03, Comment b (emphasis supplied). 36. Union Bank of Australia Ltd v Rudder (1911) 13 CLR 152 at 163; BC1190106

per Griffith CJ.

Identity of ratifying party

5.10 As a consequence of the foregoing, in order for a ratification to be effective, it must be done by the person for whom the act is professedly done by the agent,37. or at least by a person duly authorised by that person for this purpose.38. To this end, in Bundoora Park Estate Company Ltd v Fisher39. it was held that, where a contract is made by an agent without authority for a principal who dies without ratifying it, the chance to ratify expires, and the deceased principal's executors cannot ratify the contract so as to bind the estate. Madden CJ explained the logic for this as follows:40. [A]n executor or administrator is an executor or administrator of the goods that were … ‘of the deceased’, that is, he takes the estate as it stood at the time of the death; he cannot make it better or worse. He must take the debts and assets and obligations in the state in which he finds them. He may enter into contracts on his own account for which he himself will be responsible. It is a check on him that he may not abuse the testator's or intestate's property. If an executor were at liberty to add to or increase the liabilities of the testator, he might do all kinds of things.

Page 4 of 15 Elements of Ratification It must be queried whether this necessarily represents the law in all cases. Although an agency ordinarily is said to terminate upon the death of the principal,41. this cannot of itself justify the aforesaid outcome because the effect of ratification is to create the authority as at the time of the unauthorised act. Also, at general law executors owe fiduciary duties to the estate, and as part of these duties cannot act inconsistently with the proper interests of the estate.42. These duties serve to restrict what executors can validly do with the property of the

Page 108 deceased. Therefore, it can be argued that whether the death of the principal serves to deny an entitlement to ratify in the executors depends on what is required or prohibited by the proper exercise of their duties, whether the contractual commitment is personal to the putative principal,43. and whether the purported ratification has been effected within a reasonable time of the unauthorised act.44. That the ratification must be done by the person for whom the act is professedly done by the agent does not, in any event, require that the principal be named, provided that the principal is ascertainable at the time when the agent's act was done. For this purpose, it is sufficient if the agent describes the principal so as to constitute a reasonable designation of the person intended to be bound by the agent's act.45.

37. Whitehead v Taylor (1839) 10 Ad & El 210; 113 ER 81; Foster v Bates (1843) 12 M & W 226; 152 ER 1180. 38. Suncorp Insurance and Finance v Milano Assicurazioni SpA [1993] 2 Lloyd's Rep 225 at 235 per Waller J. 39. (1894) 20 VLR 460

.

40. Bundoora Park Estate Company Ltd v Fisher (1894) 20 VLR 460 at 464

.

41. See 25.19. 42. MacKenzie v MacKenzie (1998) 16 FRNZ 487 at 492–3. 43. As to personal contracts see 3.17. 44. As to the need to ratify within a reasonable time see 5.23–5.25. 45. Watson v Swann (1862) 11 CBNS 756 at 769, 771; 142 ER 993 at 998, 999 v Durant [1901] AC 240

at 254

Ltd (1987) 8 NSWLR 270 at 276

per Willes J; Keighley, Maxstead & Co

per Lord Davey; Trident General Insurance Co Pty Ltd v McNiece Bros Pty per McHugh JA (affd Trident General Insurance Co Pty Ltd v McNiece Bros Pty

Ltd (1988) 165 CLR 107; BC8802625

). See further Bowstead, pp 77–80.

‘At the time the act was done the agent must have had a competent principal’

5.11 The requirement that ‘at the time the act was done the agent must have had a competent principal’ is not to be interpreted as requiring a pre-existing agency relationship. As noted earlier, ratification can operate both to create an agency relationship, albeit one the subject matter of which has already been effected, or to give effect to an act outside the existing authority of an agent. What, rather, this requirement recognises is that it is necessary that the person who purports to ratify should have been both in existence and capable of being ascertained at the time when the act was done.46. This is logical, in that an agent cannot properly act on behalf of a non-existent or unascertainable principal. If the principal cannot be clearly identified, the other contracting party cannot determine with the requisite certainty whether or not to enter legal relations with such a person. Although, as noted above,47. what is required is a reasonable description of the person intended to be bound as principal, and not necessarily the principal's name, this description should be such as to provide the means to identify the actual person with whom the contracting party believes he or she is to contract. This is important in that it is only the person on whose behalf the agent purported to transact who is able to ratify.48.

Page 5 of 15 Elements of Ratification

46. Celthene Pty Ltd v W K J Hauliers Pty Ltd [1981] 1 NSWLR 606 at 614

per Yeldham J.

47. See 5.11. 48. So, for example, if an agent purports to contract for an incorporated body, it is the proper organ of that body and not any individual member who may ratify: Jones v Hope (1880) 3 TLR 247n.

5.12 An area that has presented challenges in this regard relates to the circumstances in which, where a contract of insurance is expressed to insure a named assured together with a class of others unnamed for their respective rights and interests, someone who qualifies as a member of that class can sue on the policy.49. Here the challenge is to balance the above issues of doctrine with commercial practice in the insurance environment. In National Oilwell (UK) Ltd v Davy Offshore Ltd Colman J sought to achieve this balance as follows:50. Where at the time when the contract of insurance was made the principal assured or other contracting party had no actual authority to bind the other party to the contract of insurance, but the policy is expressed to insure not only the principal assured but also a class of others who are not identified in that policy, a party who at the time when the policy was effected could have

Page 109 been ascertained to qualify as a member of that class can ratify and sue on the policy as co-assured if at that time it was intended by the principal assured or other contracting party to create privity of contract with the insurers on behalf of that particular party.

According to his Lordship, relevant evidence of the requisite intention could be provided by the terms of the policy itself, by the terms of any contract between the principal assured or other contracting party and the alleged coassured, or by any other admissible material showing what the principal assured subjectively intended.51.

49. See, for example, Boston Fruit Company v British and Foreign Marine Insurance Company Ltd [1906] AC 336 (where the principal was not sufficiently identified as an insured under an insurance policy to justify ratification for the purposes of enforcing a claim under that policy). 50. [1993] 2 Lloyd's Rep 582 at 596–7 (emphasis supplied). 51. National Oilwell (UK) Ltd v Davy Offshore Ltd [1993] 2 Lloyd's Rep 582 at 597.

5.13 Yet the main application of the above requirement arises in the context of bodies to be incorporated. So at general law a body that is yet to be incorporated cannot ratify a contract effected by an ‘agent’ (in this context commonly termed a ‘promoter’) ostensibly on its behalf. In such a case, the company cannot upon its formation take under that contract;52. it must enter into a new contract with the other party that supersedes the contract with the promoter.53.

Page 6 of 15 Elements of Ratification

The Corporations Act 2001 (Cth) has, however, modified the general law in this regard by providing, in s 131(1), that a company becomes bound by and entitled to the benefit of a pre-incorporation (now termed ‘pre-registration’) contract if the company, or a company reasonably identifiable with it, comes into existence and ratifies the contract within the time agreed54. by the parties to the contract, or otherwise within a reasonable time of the contract being executed. The Act envisages two acts — registration and ratification — which must occur within the relevant time, in that order.55. What may constitute ratification for this purpose has been judicially explained as follows:56. … for ratification within the meaning of s 131(1) it would be necessary that the company should decide that it adopts or ratifies the contract as its own, not necessarily formally by resolution but by a decision actually taken by the mind or minds in control of its affairs, and the fact that there was such a decision should be outwardly manifested in some way such as by communication to other parties to the contract or by behaviour otherwise unmistakably referable to the company's being a party to the contract. Without outward manifestation … a decision to ratify the contract would not fall within the ordinary meaning of ‘ratify’ and related expressions, and that a decision could be changed until it was acted on … The conduct of the company in relation to obligations or rights under the contract might be the basis for inferring that there had been some relevant decision, but where the company itself, under the control of the promoter who entered into the pre-formation contract, alleges ratification but does not produce evidence of any such decision, it would be difficult to see a line of reasoning like that as carrying the probabilities; if the person actually controlling a company's affairs does not give evidence of a decision and there are no objective facts which could be used against the company to establish obligations which the contract would impose on it, a reasonable person approaching the facts should find it difficult to infer probabilities in the company's favour.

Page 110 Unlike ratification at general law,57. s 131 does not envisage that the ratification is retrospective in effect.58. If the company does not so ratify, the court is statutorily empowered to order the company to pay all or part of the damages that the promoter is liable to pay,59. transfer property that the company received because of the contract to a party thereto, and/or pay an amount to a party to the contract.60.

52. So merely adopting a contract of purchase made before the company's formation by persons purporting to act on its behalf does not bring about any contractual relation with the vendor: Re Northumberland Avenue Hotel Co (1886) 33 Ch D 16

; North Sydney Investment and Tramway Co v Higgins [1899] AC 263

53. Natal Land etc Co v Pauline Colliery Syndicate [1904] AC 120 Rose (1933) 49 CLR 84 at 94; BC3300024

at 126

. (PC); Dudley Buildings Pty Ltd v

per Starke J.

54. While the term ‘agreed’ involves mutual understanding between the parties to the contract, there is no requirement that such an agreement be included in the contract or that the agreement be contractually binding: Aztech Science Pty Ltd v Atlanta Aerospace (Woy Woy) Pty Ltd (2005) 55 ACSR 1; [2005] NSWCA 319; BC200506977 at [69] per Basten JA (adding that ‘it is not clear that a statutory reference to what is“agreed” should not be understood to include a situation in which one party is estopped from denying that such an agreement exists’: at [71]). 55. Aztech Science Pty Ltd v Atlanta Aerospace (Woy Woy) Pty Ltd (2005) 55 ACSR 1; [2005] NSWCA 319; BC200506977 at [60]

per Basten JA.

56. Aztech Science Pty Ltd v Atlanta Aerospace (Woy Woy) Pty Ltd (2005) 55 ACSR 1; [2005] NSWCA 319; BC200506977 at [29]

per Bryson JA.

57. See 5.40. 58. Kevroy Pty Ltd v Keswick Developments Pty Ltd (2009) 69 ACSR 635; [2009] QSC 49; BC200901422 at [37] [39] per A Lyons J (noting that as parallel provisions in earlier legislation explicitly provided for the ratification to operate retrospectively, whereas the current provision does not, ‘[i]t must be concluded therefore, particularly given the legislative history, that there was no legislative intention for the ratification to operate retrospectively’: at [39]). 59. By virtue of the promoter's personal liability: see 23.57–23.65.

Page 7 of 15 Elements of Ratification 60. Corporations Act 2001 (Cth) s 131(3). Cf W Courtney, ‘Failed Pre-Registration Contracts and the Statutory Remedy’ (2007) 25 C&SLJ 226.

‘At the time of the ratification the principal must be legally capable of doing the act himself’ General rule

5.14 As a general rule, a principal who lacked capacity to enter into a contract at the time when it was made cannot ratify the contract.61. The rationale for this rule lies in a basal notion of agency law that ‘what a person may do himself, he may do by an agent’,62. represented by the maxim qui facit per alium facit per se.63. By parity of reasoning, because ratification relates back to the time at which the unauthorised act was committed,64. if the principal was legally incapable of doing the act at that time, to permit ratification by the principal of that act in effect is to upset this notion. The doctrine of ratification, already an anomaly and a fiction, should not be used, it is reasoned, to confer upon the principal capacity to effect an act that the principal is otherwise denied by law. Yet the general rule needs qualification, at least so far as minors are concerned. It makes sense to conclude that a minor should be allowed to ratify contracts upon attaining legal majority even though he or she lacked capacity — for being under age — to enter into a binding contract at the time the agent acted.65. Where the principal lacks the mental capacity to contract, the same logic can support a view that ratification can be effected upon the principal recovering mental capacity,66. assuming of course that there are no other grounds to deny it effect.

61. Trident General Insurance Co Pty Ltd v McNiece Bros Pty Ltd (1987) 8 NSWLR 270 at 280

per McHugh JA (affd

Trident General Insurance Co Pty Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107; BC8802625 Baxter (1866) LR 2 CP 174 . 62. J M Christie v Permewan, Wright & Co Ltd (1904) 1 CLR 693 at 700; BC0400015

), citing Kelner v

per Griffith CJ.

63. See 3.16–3.31. 64. See 5.40. 65. There is American case authority (see, for example, Sabourin v LBC Inc, 731 F Supp 1151 at 1155 (DRI 1990); and see Restatement (3d) §4.04, Comment b) and in South Australia specific statutory provision (Minors Contracts (Miscellaneous Provisions) Act 1979 (SA) s 4) to this effect. 66. See, for example, Wilcox Manufacturing Group Inc v Marketing Services of Indiana Inc, (2005) 832 NE 2d 559 at 563 (Ind App 2005) (president of a company who signed a loan agreement while suffering impaired cognitive function due to lithium toxicity held to have ratified the agreement when the company persisted in making loan repayments after the president ‘had recovered his ability to understand the nature of the contract upon which his company was making payments’). See also A Treatise F R Mechem, A on the Law of Agency , 2nd ed, Callaghan & Co, Chicago, 1914, p 273 (‘one on whose behalf an act has been done during his insanity, may after his sanity is restored, ratify the act’).

Void acts — no ratification of a legal nullity

5.15 Consistent with the general rule, an alleged principal who lacked actual authority to enter into the contract in question at the time it was entered into by the alleged agent cannot ratify it; ‘[i]t is not possible that a contract made by one person without authority can be ratified

Page 8 of 15 Elements of Ratification

Page 111 by another or others similarly lacking authority’.67. This also reflects the notion that the scope of an agent's authority cannot exceed that vested in the principal.68. So if a company director acts outside of his or her authority, but which act the company had power to do, the company may retrospectively authorise that act by ratification. But if the unauthorised act of the director is ultra vires of the company,69. the company cannot ratify it because ‘if such an act had been done by the company qua company, it would have been a nullity’.70. These examples highlight the fact that there can be no ratification of a legal nullity71. — being a nullity, ‘there is nothing that can be ratified to begin with’72. — meaning that an act that by its inception is void is incapable of ratification. In the words of Parker J,73. ‘life cannot be given by ratification to prohibited transactions’. Hence, a purported principal cannot ratify an act that would have been illegal had it been done personally and so escape the consequences of the illegality.74. Nor can, at least in theory, an act that is void when effected by a purported agent be validly ratified by the principal. So it has been said that a purported agent's forgery of the principal's signature cannot be ratified,75. the reason being that a forged document is a nullity; it is void, not voidable.76. Justification for this result has also been derived on the basis that an act that is a criminal offence is not capable of ratification.77. In most such cases a forger who counterfeits a signature or seal does not profess to act as an agent,78. and it is for this reason that ratification cannot be effected.79. If, however, the agent in forging the signature purports to act for an identified principal, there appears no reason why the principal should not be able to ratify.80. In any event, an instrument forged can subsequently be adopted by the principal under a new agreement between the principal and the contracting party for valuable consideration or under seal.81. Yet aside from any issue of ratification, a principal may be held to be estopped from denying effect to a document to which his or her signature has been forged by an agent if the principal has, by not disclosing to the third party

Page 112 that the instrument is a forgery82. or instructing the third party to act upon the instrument,83. induced the third party to act to his or her detriment in reliance upon the principal's conduct.

67. Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising and Addressing Co Pty Ltd [1975] VR 607 at 617 per Lush J (affd Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising and Addressing Co Pty Ltd (1975) 133 CLR 72; BC7500063

).

68. Cripps v Lakeview Farm Fresh Ltd (in receivership) [2006] 1 NZLR 238 at [22]

per MacKenzie J.

69. This is cited simply by way of example, in that the doctrine of ultra vires no longer applies to corporations in Australian law: see Ford, [12.060], [12.100]. 70. McLellan Properties Ltd v Roberge [1947] 4 DLR 641 at 652 per Estey J (SCC). 71. Watson v Davies [1931] 1 Ch 455 at 469 per Maugham J. See also Spackman v Evans (1868) LR 3 HL 171 at 244 per Lord Romilly (act ultra vires a company). 72. T Cheng Han, ‘The Principle in Bird v Brown Revisited’ (2001) 117 LQR 626 at 641. 73. Bedford Insurance Co Ltd v Instituto de Resseguros do Brasil [1985] QB 966 74. Bedford Insurance Co Ltd v Instituto de Resseguros do Brasil [1985] QB 966

at 986 at 985

. per Parker J. See also

La Banque Jacques-Cartier v La Banque d'Epargne de Montreal (1887) 13 App Cas 111 at 118 per Lord Fitzgerald (‘acquiescence and ratification … must be in relation to [a] transaction which may be valid in itself and not illegal’). 75. Brook v Hook (1871) LR 6 Ex 89

; Barton v London & North Western Railway Co (1890) 62 LT 164; Greenwood v

Martins Bank [1932] 1 KB 371 ; Rowe v B & R Nominees Pty Ltd [1964] VR 477 at 484 per Gillard J (who considered that the authorities dictated that it is ‘very improbable’ that a forgery may be ratified); Commonwealth Bank of Australia v Perrin (2011) Q ConvR ¶54-765; [2011]QSC 274; BC201107193 at [144], [145]

per McMurdo J.

76. Rowe v B & R Nominees Pty Ltd [1964] VR 477 . Cf M'Kenzie v British Linen Co (1881) 6 App Cas 82 at 99 per Blackburn J (where it was held that in civil cases a person may ratify a forgery, but this view was rejected by Scrutton LJ in Greenwood v Martins Bank [1932] 1 KB 371

at 379

).

Page 9 of 15 Elements of Ratification 77. Brook v Hook (1871) LR 6 Ex 89

. See also Harrisons & Crossfield Ltd v London and North-Western Railway

Co [1917] 2 KB 755 at 757 per Rowlatt J (‘It may be that a person cannot ratify an act when the ratification involves the adoption of a criminal element in it’). Cf Fridman, pp 92–3, 95–7. 78. See Bowstead, p 73. See also Rowe v B & R Nominees Pty Ltd [1964] VR 477 at 483

per Gillard J.

79. See 5.8–5.10. 80. This is envisaged by the Bills of Exchange Act 1909 (Cth) s 29 (which specifically envisages that an unauthorised signature on a bill of exchange can be ratified unless it amounts to a forgery) and the Cheques Act 1986 (Cth) ss 3(6), 32(1) (in relation to forged signatures or endorsements on cheques). 81. Greenwood v Martins Bank Ltd [1932] 1 KB 371

(affd Greenwood v Martins Bank Ltd [1933] AC 51

per Lord Tomlin); Rowe v B & R Nominees Pty Ltd [1964] VR 477 at 485 EWHC 2058 (Ch) at [52] [57] per HHJ David Cooke. 82. Greenwood v Martins Bank Ltd [1933] AC 51

at 57

per Gillard J; English v English [2010]

; Brown v Westminster Bank Ltd [1964] 2 Lloyd's Rep 187.

83. Tina Motors Pty Ltd v Australia and New Zealand Banking Group Ltd [1977] VR 205 at 208–11 per Crockett J (involving cheques forged by an employee, but which the employer directed the bank were in order, which was held to make out an estoppel). Cf Fung Kai Sun v Chan Fui Hing [1951] AC 489

at 506

per Lord Reid (where no

estoppel was made out for lack of proof of detriment); Rowe v B & R Nominees Pty Ltd [1964] VR 477 at 484–5 Gillard J (no estoppel because of a lack of evidence of detriment).

per

5.16 Where statute makes an act unlawful, the act can be legalised by the principal's ratification only if it was unlawful for a purported agent but not the principal. So, for example, where neither the purported principal nor the purported agent are authorised under a statute to carry on insurance business, the principal cannot ratify the agent's acts in carrying on that business.84.

84. Bedford Insurance Co Ltd v Instituto de Resseguros do Brasil [1985] QB 966

.

Voidable acts

5.17 The foregoing can be contrasted with acts that are voidable, which are instead capable of being given effect by ratification. It is from this perspective that judicial statements that unauthorised acts by an agent can be ratified whether they be lawful or unlawful should be viewed.85. The reference to ‘unlawful’ can be read, inter alia, as referring to an act that is unlawful for the agent but lawful for the principal, and that is not void when effected by a purported agent. So an unauthorised act by a purported agent consisting of a fraud or breach of fiduciary duty in respect of the purported principal can be ratified by the principal.86. In Re Tiedemann and Ledermann Frères [1899] 2 QB 66 at 71 ,87. for example, although an agent purported to sell goods in the name of a principal, he intended to sell them on his own account and for his own benefit. Channell J held it competent for the principal to ratify and take the benefit of the contract as against the buyers.88.

85. Bedford Insurance Co Ltd v Instituto de Resseguros do Brasil [1985] QB 966

at 985

per Parker J.

Page 10 of 15 Elements of Ratification 86. Barton v London & North Western Railway Co (1890) 62 LT 164. Cf Marsh v Joseph [1897] 1 Ch 213 at 246–7 per Lord Russell CJ (where a lack of knowledge in the principal was held to mean that the purported agent's fraudulent act was not validly ratified). 87. [1899] 2 QB 66

.

88. Re Tiedemann and Ledermann Frères [1899] 2 QB 66

at 71

.

Application to torts

5.18 The phrase ‘lawful or unlawful’ also underscores the fact that the doctrine of ratification can apply to torts. A principal can ratify a tortious act of a purported agent, such as a trespass or an assault,89. and in so doing become liable to the extent of the acts to which the ratification relates,90. assuming of course that the principal has knowledge of the circumstances that make the agent's act tortious.91. That the act of ratification by the principal itself constitutes a tort does not nullify the ratification; what it does is render the principal liable for that tort. A special rule must, however, apply in the case of torts that do not depend upon proof of knowledge. The typical example is where a purported agent has committed the tort of conversion, in which case any act by the principal that is inconsistent with the title of the third party, such as ratification, also amounts to conversion.Because liability for conversion is strict once there is proof of an intentional act, that the principal lacked knowledge of the true nature of the agent's acts is unlikely to substantiate a valid defence.92.

Page 113

89. Eastern Counties Railway Co v Broom (1851) 6 Ex 314; 115 ER 562. 90. Lewis v Read (1845) 13 M & W 834; 153 ER 350; Haseler v Lemoyne (1858) 5 CBNS 530; 141 ER 214; Knight v North Metropolitan Tramways Co (1898) 78 LT 227. 91. Freeman v Rosher (1849) 13 QB 780 ; 116 ER 1462 to the need for knowledge in ratification see 5.19–5.22.

. See also Fridman, pp 91–2. Cf Bowstead, pp 71, 81–2. As

92. See, for example, Hilbery v Hatton (1864) 2 H & C 822; 159 ER 341, where X, without the defendant's authority, purchased a ship on behalf of the defendant. The defendant purported to ratify X's act, not knowing that the sale to X was unlawful.The defendant was notwithstanding held liable for conversion of the ship.

Need for knowledge in the putative principal Generally

5.19 Before a putative principal can properly be said to have ratified or adopted the act of a purported agent, it must be shown that the principal had, at the time of the ratification, full knowledge of all the material facts and circumstances pertaining to the agent's unauthorised act.93. ‘Ratification of an act about which the principal knows nothing is inherently impossible’.94. The principal must have been presented with all proper materials upon which to make an informed decision whether or not to ratify.95. Lack of knowledge may arise from the agent's concealment or misrepresentation, whether or nor designed, or from ‘the principal's mere inadvertence’.96. The source of that knowledge, though often the agent, does not determine whether the principal is bound by a ratification.97. A principal cannot deny knowledge to which he or she would have been privy had the principal not closed his or her

Page 11 of 15 Elements of Ratification eyes to the obvious. Phillimore LJ emphasised this point colourfully in observing that ‘it is unnecessary to decide what inference should be drawn when a principal knows so much that it is a policy of an ostrich to know no more’.98. In circumstances where the principal has signed a document that reveals the true state of affairs, for instance, it stands to reason that the law should not countenance a claim of lack of knowledge, at least in the absence of grounds to vitiate consent.99. Moreover, the bulk of authority dictates that there is no need to establish that the principal knew the legal effect of the act ratified.100. Mere constructive knowledge in the principal is arguably insufficient for this purpose, though, for this would absolve the agent from the unauthorised act merely upon proof that the principal ought to have had knowledge but did not have it, and did not close his or her eyes to it.101.

93. Savery v King (1856) 5 HL Cas 627; 10 ER 1046 per Wearing J; Marsh v Joseph [1897] 1 Ch 213 48 at 59; BC2690110

; Ricketson v Dean and Laughton (1870) 4 SALR 78 at 81–2 at 246–7 per Lord Russell CJ; Taylor v Smith (1926) 38 CLR

per Higgins J; Turner v Webb (1941) 42 SR (NSW) 68 at 73

v Melrose [1951] SASR 139 at 147

per Nicholas CJ in Eq; Tobin

per Ligertwood J; Hamilton Panel Works Ltd v Thomas [1963] NZLR 771 at 774

per Woodhouse J; Victorian Professional Group Management Pty Ltd v Proprietors ‘Surfers Aquarius’ Building Units Plan No 3881 [1991] 1 Qd R 487 at 496–7 BPR 16,259 at 16,262–3 BC201002464 at [134]

per Connolly J, at 499–500 per Thomas J; Sinclair v Hudson (1995) 9

per Windeyer J; Leybourne v Permanent Custodians Ltd [2010] NSWCA 78; per the court.

94. Ercanbrack v Crandall-Walker Motor Co, (1976) 550 P 2d 723 at 725 (Utah 1976). 95. De Bussche v Alt (1878) 8 Ch D 286

at 313

per Thesiger LJ. Cf Ing Re (UK) Ltd v R & V Versicherrung

AG [2006] 2 All ER (Comm) 870; [2006] EWHC 1544 (Comm) (where, if the principal knows what the agent has done but does not know that the agent lacked authority to do it because of a lack of adequate records or internal organisation, Toulson J saw no reason in justice why that should operate to the detriment of the third party (at [155]), adding that ‘where a party deals honestly with an agent whose principal goes ahead with the transaction with knowledge of what the agent has ostensibly done on the principal's behalf, his reasonable expectation would surely be that the principal would be bound by the transaction’: at [156]). 96. Ricketson v Dean and Laughton (1870) 4 SALR 78 at 81–2

per Wearing J.

97. Restatement (3d) §4.06, Comment b. 98. Morison v London County and Westminster Bank Ltd [1914] 3 KB 356

at 385

.

99. This is consistent with contract law principle that subjects a person who signs a document to the terms of that document, whether or not he or she has read them: L'Estrange v F Graucob Ltd [1934] 2 KB 394 Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52; BC200407463 100.Brown v Hardy (1868) 5 WW & A'B (L) 245; Powell v Smith (1872) LR 14 Eq 85 Taylor v Smith (1926) 38 CLR 48; BC2690110

; Toll (FGCT)

. at 90–1

per Lord Romilly MR. Cf

, discussed at 5.21.

101.Cf the following American cases that align actual knowledge to circumstances where the principal could have discovered the true facts: Estate of Sawyer v Crowell, (1989)559 A 2d 687 (Vt 1989); Lahnston v Second Chance Ranch Co, 968 P 2d 32 at 36 (Wyo 1998).

5.20 As with any inquiry in which legal responsibility rests in knowledge, the relative sophistication and position of the parties cannot be ignored. Accepting that ‘[i]t is easier to state the principle that full knowledge is required than to apply it’,102. it may prove more difficult for a professional person, such as a lawyer, to effectively profess an absence of knowledge than

Page 114 a layperson.103. As to the latter, in Ryder v Osler, Wills Bickle Ltd,104. a case involving the breach by a broker of the terms of an account held by an unsophisticated investor, the Ontario High Court of Justice held that the client's

Page 12 of 15 Elements of Ratification return of confirmation of the account as requested did not amount to ratification because the client lacked full knowledge (that is, understanding) of the broker's wrongful acts. Similarly, in Crampsey v Deveney105. the Supreme Court of Canada ruled that, where a woman sold land she held on joint tenancy with her three children without the knowledge or consent of the children, the children's silence and inactivity on the matter stemming from that lack of knowledge could not amount to ratification.

102.Fried v National Australia Bank Ltd (2001) 111 FCR 322; [2001] FCA 907; BC200103909 at [142]

per Gray J.

103.See, for example, White v Moriarty, 19 Cal Rptr 2d 200 (Cal App 1993). 104.(1985) 13 DLR (4th) 80 at 93 per Holland J. 105.(1968) 2 DLR (3d) 161 at 164 per Judson J.

Onus

5.21 In that ratification attracts liability of the principal for an act that he or she has not initially authorised the agent to effect, it is appropriate that the person seeking to enforce the agent's act against the principal bears the onus of 106. the establishing full knowledge in the principal. For example, in Taylor v Smith (1926) 38 CLR 48 at 54–5, 59 respondent vendor gave an authority to an agent to find a purchaser for his property, mistakenly believing that it was a mere authority to sell, whereas in fact it was the authority for the agent to keep the excess of the sale price above a certain amount. On the sale of the property brought about by the agent, the respondent's solicitor, without the respondent's authority, paid the agent the amount due to the agent according to terms of the agency. The High Court held that the payment was made under a mistake of fact that was not within the respondent's knowledge, there being insufficient proof that the respondent consciously sanctioned his solicitor's act in making the payment.107. Therefore, no ratification had occurred.

106.(1926) 38 CLR 48; BC2690110

.

107.Taylor v Smith (1926) 38 CLR 48 at 54–5, 59

per Knox CJ, at 62 per Starke J; BC2690110.

Ratification without full knowledge

5.22 A principal may, however, be held to have validly ratified even without full knowledge where he or she expressly adopts the agent's acts whatever those acts were.108. In Fitzmaurice v Bayley (1860) 9 HL Cas 78; 11 ER 657,109. for example, the agent without authority executed a lease of premises on the principal's behalf, which premises included certain stables. The principal was unaware of this latter fact but, in a letter addressed to the lessor, wrote the following: ‘What [the agent] has done for me I know not; but of course I must support him in all he has done for me’. It was held as a result that the principal had ratified the agent's acts. Circumstances of this kind are likely to be rare, as it is contrary to a principal's interests to subject himself or herself, without full knowledge, to liability for unauthorised acts. Hence, only where the evidence shows clearly that the principal intended to ratify whatever the circumstances could a result such as that in Bayley be justified. This practically requires unequivocal words, most likely written.

Page 13 of 15 Elements of Ratification 108.Bremner v Sinclair [2001] ANZ Conv R 29; BC9807354 at [32] per Campbell J; Leybourne v Permanent Custodians Ltd [2010] NSWCA 78; BC201002464 at [134] per the court (each noting that there need not be full knowledge of all the material circumstances in which the act was done if ‘the principal intends to ratify and take the risk whatever the circumstances’). 109.(1856) 6 El & Bl 868; 119 ER 1087 (affd Fitzmaurice v Bayley (1860) 9 HL Cas 78; 11 ER 657).

Ratification to be effected within a reasonable time

5.23 Ratification of an unauthorised act must be effected within a reasonable time of the act,110. although a rigid rule as to what is reasonable cannot be laid down.111. It is a question

Page 115 of fact in each case; ‘[m]ere time is nothing except with reference to the circumstances’.112. The concern is the putative principal abusing an ability to elect whether or not to ratify the agent's unauthorised act.113. Effluxion of time occurs for this purpose where to allow ratification would unfairly prejudice a third party.114. A third party may be unfairly prejudiced where, due to a principal's delay in ratifying, he or she reasonably concludes that the principal does not intend to ratify, and thus orders his or her affairs accordingly (whether proceeding against the agent for breach of warranty of authority,115. or in abandoning the transaction and seeking alternative avenues). This reflects the ‘material change in circumstances’ notion found in the American Restatement,116. which is akin to the concept of ‘change of position’ in English law.

110.Re Portuguese Consolidated Copper Mines Ltd (1890) 45 Ch D 16

at 31

per Lindley LJ, at 34 per Bowen LJ;

Life Savers (Australia) Ltd v Frigmobile Pty Ltd [1983] 1 NSWLR 431 at 438

per Hutley JA; Trident General

Insurance Co Ltd v McNiece Bros Pty Ltd (1987) 8 NSWLR 270 at 282

per McHugh JA (affd Trident General

Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107; BC8802625

).

111.Life Savers (Australia) Ltd v Frigmobile Pty Ltd [1983] 1 NSWLR 431 at 438 Kennedy (1889) 14 App Cas 437

at 461–2

per Hutley JA. See, for example, Lyell v

per Earl of Selborne.

112.Re Portuguese Consolidated Copper Mines Ltd (1890) 45 Ch D 16

at 35

per Bowen LJ.

113.Hagedorn v Oliverson (1814) 2 M & S 485 at 490; 105 ER 461 at 463 per Lord Ellenborough CJ (who pointed out how favourable the law of ratification was to the principal because until ratification the principal was not bound, having an option to adopt or not to adopt what had been done in his or her name without authority); Prince v Clark (1823) 1 B & C 186 at 190; 107 ER 70 at 71 per Bailey J (‘The principal … has no right to pause and to wait the fluctuation of the market, in order to ascertain whether the purchase is likely to be beneficial or prejudicial; he is bound, if he dissents, to notify his determination within reasonable time’). 114.Pacific Drive-In Theatres Pty Ltd v Theatres and Films Commission and Northern Amusements Corporation Pty Ltd [1956] LGR 237 at 242 per Amsberg DCJ; Celthene Pty Ltd v W K J Hauliers Pty Ltd [1981] 1 NSWLR 606 at 614 per Yeldham J. 115.See 23.80–23.94. 116.Restatement (3d) §4.05.

5.24 Moreover, where it is essential to the validity of an act that it should be done within a certain time, the act cannot be ratified after the expiration of that time to the prejudice of any third person.117. This may be the case where, for

Page 14 of 15 Elements of Ratification instance, a time for performance is fixed by the other party, in which case ratification must occur before that time.118. Nor can ratification arguably occur at a time that upsets the notion that ‘an estate once vested cannot be 120. divested’.119. For example, in Hughes v NM Superannuation Pty Ltd (1993) 29 NSWLR 653 at 664–5 ratification was attempted over a year after the unauthorised act, during which time the entitlements of beneficiaries of a superannuation trust had become fixed by their termination of employment. This event within the period intervening the act and the attempted ratification was held to deny it legal effect.121.

117.Pacific Drive-In Theatres Pty Ltd v Theatres and Films Commission and Northern Amusements Corporation Pty Ltd [1956] LGR 237 at 242 per Amsberg DCJ. 118.Metropolitan Asylums Board of Managers v Kingham & Sons (1890) 6 TLR 217 Lambert (1889) 41 Ch D 295

. But see Bolton Partners v

, discussed at 5.43–5.48.

119.See 5.41, 5.42. 120.(1993) 29 NSWLR 653

.

121.Hughes v NM Superannuation Pty Ltd (1993) 29 NSWLR 653 at 664–5

per Sheller JA.

5.25 There is nineteenth century English authority, in the context of an agent entering a contract without the authority of his or her principal, that ‘if ratification is to bind, it must be made within a reasonable time after acceptance by an unauthorised person’ and that ‘reasonable time can never extend after the time at which the contract is to commence’.122. However, this can only apply to a contract that remains unperformed, at least on one side, where the time for performance has passed.123. It does not, if unqualified, represent a correct statement of the modern law,124. because what is a reasonable time in relation to the doing of any act arising out

Page 116 of a contractual situation depends on the circumstances of the particular case, including, where it is appropriate, the conduct of the parties subsequent to the making of the contract.125.

122.Metropolitan Asylums Board (Managers) v Kingham & Sons (1890) 6 TLR 217 at 218

per Fry LJ.

123.Celthene Pty Ltd v W K J Hauliers Pty Ltd [1981] 1 NSWLR 606 at 615 per Yeldham J. This also may be stating the proposition in terms too inflexible, on the ground that it would not be unreasonable towards a defaulting third party, in a case where the agent was demanding performance or damages, for the principal to ratify in order to take the benefit that would otherwise accrue to the agent: Greig and Gunningham, [1.033]. 124.Bedford Insurance Co Ltd v Instituto de Resseguros do Brasil [1985] QB 966 at 987 per Parker J (who noted that no authority was cited in support ‘of this very wide statement and I know of no principle to sustain it’). See also Bowstead, pp 98–9. 125.Greig and Gunningham, [1.033], citing the contract law case of Manchester Diocesan Council for Education v Commercial and General Investments Ltd [1969] 3 All ER 1593

Writing requirements

5.26

as an example.

Page 15 of 15 Elements of Ratification Where statute requires that an agency be created or evidenced in writing as a condition of its validity or enforceability, ratification must be in writing to be effective.126. Aside from a statutory writing requirement, to effect ratification in writing serves the purpose of avoiding any confusion as to whether or not the principal has ratified the agent's act127. and, in the case of more than a single discrete unauthorised act, which if any of the acts have been ratified. Conversely, if a contract is required by statute to be in writing or evidenced in writing as a condition of its enforceability,128. a valid ratification of the agent's signature on the contract need not be in writing, but can be effected orally.129. However, the execution of a deed by a person purporting to act as agent but without authority of the principal can only be ratified by deed.130.

126.Jones v Peters [1948] VLR 331 at 335

per Herring CJ.

127.See in this context the arguments concerning implied ratification, discussed at 5.28, 5.29. 128.See 3.7. 129.Soames v Spencer (1822) 1 Dow & Ry 32; Fitzmaurice v Bayley (1860) 9 HL Cas 78; 11 ER 657; Ronald v Lalor (1872) 3 VR (E) 98. 130.Hunter v Parker (1840) 7 M & W 322; 151 ER 789; Oxford Corporation v Crow [1893] 3 Ch 535

End of Document

.

Evidence of Ratification Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 5: Agency by Ratification > Chapter 5 Agency by Ratification

Evidence of Ratification Please click on the link below to download the entire chapter.

Express ratification

5.27 To ratify the unauthorised act of an agent requires language or conduct by the principal that is unequivocal.131. To cast upon a putative principal the potentially weighty legal consequences of ratification for words or conduct that can be explained on more than one sensible basis attaches too little weight to the fact that the agent's act was not initially authorised by the principal. Little difficulty arises where there is an express written or oral statement evidencing ratification, especially when accompanied by actions consistent with this course.

131.Harrison's & Crossfield Ltd v London & North-Western Railway Co [1917] 2 KB 755 Turner v Webb (1941) 42 SR (NSW) 68 at 73

at 758

per Rowlatt J;

per Nicholas CJ in Eq; Petersen v Moloney (1951) 84 CLR 91 at 101

per Dixon, Fullagar and Kitto JJ; Tobin v Melrose [1951] SASR 139 at 147 Peters [1983] VR 53 at 59–60 per Beach J.

per Ligertwood J; McLachlan-Troup v

Implied or inferred ratification

5.28 In the absence of express words coupled with active conduct, ratification, if it is to have effect, must be implied or inferred from the circumstances.132. The positive acts of the alleged principal may, aside from any express words, constitute sufficient evidence of ratification. This may be so where the fair inference to be drawn from a person's conduct, on an objective basis, is that the person consents to a transaction to which he or she might properly have objected.133. Put another way, ratification ‘is implied from or involved in acts when you cannot logically analyse the act without imputing such approval to the party whether his mind in fact approved

Page 117 or disapproved or wholly disregarded the question’.134. It is arguably easier to infer ratification in the case of an existing agency relationship where the agent's act is unauthorised than where the ratification is used as a vehicle to create an agency relationship.

132.Harrisons & Crossfield Ltd v London & North-Western Railway Co [1917] 2 KB 755 Davison v Vickery's Motors Ltd (in liq) (1925) 37 CLR 1 at 21; BC2500013 point of law; Halligan v Mitchell [1941] VLR 240 at 244

per Martin J.

at 758

per Rowlatt J;

per Isaacs J, in dissent but not on this

Page 2 of 6 Evidence of Ratification 133.Re Eaves [1939] 4 All ER 260 at 264 per Clauson LJ; Lamshed v Lamshed (1963) 109 CLR 440 at 448 Kitto J. See, for example, Canada Trust Co v Gordon [1978] 5 WWR 268.

per

134.Harrisons & Crossfield Ltd v London & North-Western Railway Co [1917] 2 KB 755 at 758 per Rowlatt J. See also Marsh v Joseph [1897] 1 Ch 213 at 246–7 per Lord Russell CJ (‘such an unqualified adoption that the inference may properly be drawn that the principal intended to take upon himself the responsibility for [the agent's] acts’).

Evidence of implied or inferred ratification

5.29 Where a principal sues on a transaction effected by an agent outside of his or her authority,135. or alternatively grounds a defence to legal proceedings on the basis of the validity of such a transaction,136. it is implicit in the principal's actions that he or she has ratified the agent's unauthorised transaction. In Verschures Creameries Ltd v Hull and Netherlands Steamship Company Ltd137. the owner of goods (principal) instructed forwarding agents not to deliver the goods to a customer. In breach of this instruction, the forwarding agents made that delivery, but the owner then invoiced the goods to that customer and successfully sued him for the price of the goods. The English Court of Appeal held that the principal had, by suing the customer, ratified the unauthorised act of the forwarding agents, and could not therefore sue those agents for breach of duty once its ability to satisfy its judgment against the customer was frustrated by the customer's bankruptcy. The receipt of benefits, such as the purchase moneys, by the person on whose behalf an unauthorised agent purported to act may, for instance, be evidence of ratification if that person knows that the benefits flow from that unauthorised act.138. The same may be the case where the principal accepts goods purchased without authority but on his or her behalf by the agent, particularly if the principal uses or disposes of the goods.139. If the principal assigns the benefit of a contract entered into by a person without authority on the principal's behalf, this amounts to ratification if the principal has the requisite knowledge.140. Payment, or even part payment, by the principal for goods or services contracted for by a person on the principal's behalf without authority also constitutes evidence of ratification.141. In each case, however, the principal's acts must be viewed in the light of the surrounding circumstances, and any of the foregoing scenarios, though strong evidence of ratification, may not necessarily of themselves be conclusive evidence of it.142. For example, the receipt of money from an unauthorised transaction may not constitute ratification by the principal if it was for the purpose of paying the money into court rather than confirming the agent's unauthorised act.143.

Page 118

135.Celthene Pty Ltd v WKJ Hauliers Pty Ltd [1981] 1 NSWLR 606 at 615 Pty Ltd v McNiece Bros Pty Ltd (1987) 8 NSWLR 270 at 282

per McHugh JA (affd Trident General Insurance Co

Pty Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107; BC8802625 FCA 674; BC9902583 at [31], [32] [1544]

per Yeldham J; Trident General Insurance Co ); Scott v Bagshaw (1999) 92 FCR 424; [1999]

(FC); Powercor Australia Ltd v Pacific Power [1999] VSC 110; BC9907547 at

per Gillard J. See, for example, Waugh v Slavik (1976) 62 DLR (3d) 577; SEB Trygg Liv Holding Atkiebolag v

Manches [2006] 1 All ER 437; [2005] EWCA Civ 1237

.

136.See, for example, Celthene Pty Ltd v WKJ Hauliers Pty Ltd [1981] 1 NSWLR 606 137.[1921] 2 KB 608

.

.

138.Lewis v Read (1845) 13 M & W 834; 153 ER 350; The Bonita (1861) 1 Lush 252 at 265; 167 ER 111 at 118 per Dr Lushington; Australian Blue Metal Ltd v Hughes (1961) 79 WN (NSW) 498 at 515

per Jacobs J.

139.Cornwal v Wilson (1750) 1 Ves 509; 27 ER 1173; Pauling v London and North Western Railway Co (1853) 8 Ex 867.

Page 3 of 6 Evidence of Ratification 140.See, for example, Thompson v Hickman [1907] 1 Ch 550 see 5.19–5.22. 141.See, for example, Pattern v Ruddall (1881) 7 VLR (L) 148

at 560–1

per Neville J. As to the requisite knowledge

.

142.Australian Blue Metal Ltd v Hughes (1961) 79 WN (NSW) 498 at 515

per Jacobs J.

143.The Bonita (1861) 1 Lush 252; 167 ER 111 (owners who received money from the unauthorised sale of their ship by the shipmaster but without knowledge of the circumstances of the sale were held not to have ratified the sale).

Conduct not amounting to ratification

5.30 Conduct of the putative principal that would have been justifiable even were it not an act of ratification is too equivocal to qualify as conclusive evidence of ratification.144. A principal with no choice but to perform the acts in question does not by those acts in themselves effect a ratification.145. So if a person acting as a purchasing agent purchases goods on a principal's behalf without authority, and the principal, knowing of the agent's act, retains the goods in question, this is likely to constitute ratification of the agent's acts so as to confer upon the vendor a contractual entitlement against the principal, unless in the circumstances the principal had no other option but to receive the goods.146. In Marriott v General Electric Co Ltd,147. for example, the appellant agreed to sell 51% of the issued share capital in a company to the respondent, subject to a more formal contract being executed based on the terms of the original agreement. Such a contract was drafted, but it added provisions for equal representation of the vendor and purchaser on the directorate, thus depriving the respondent of the advantage of acquiring 51% of the capital. The respondent authorised its agent to ‘sign and complete … such documents as may be necessary to complete’ the agreement with the appellant. Purporting to act pursuant to this authority, the agent signed this contract. Upon discovering this difference the respondent repudiated the contract, and sought relief from its terms. In response to the court's finding that the agent's authority did not extend to signing a contract at variance with the substantial character of the original agreement, the appellant then argued that the respondent had ratified the agreement by acquiescing in and taking benefits under the contract. Starke J held that even though purchase moneys were paid, shares were transferred to a nominee of the respondent, articles of association were altered in accordance with the agreement, and directors were appointed, these acts fell for performance under the original agreement, whether or not the formal agreement was executed.148. The acts were in accordance with the parties' obligations under the initial agreement and were in truth more consistent with reliance upon the initial agreement than the formal agreement.149. Hence, acquiescence in these acts did not of itself establish any ratification of the formal agreement.

144.New Era Installations Pty Ltd v Don Mathieson & Staff Glass Pty Ltd (1999) 31 ACSR 53 at 65; [1999] FCA 475; BC9901913

per Katz J. See also Singh v Smithenberger (1923) 23 SR (NSW) 207 at 218

145.See, for example, Forman & Co Pty Ltd v The Ship Liddesdale [1900] AC 190 choice but to receive back his ship including unauthorised repairs). 146.See, for example, Cox v Isles, Love & Co [1910] St R Qd 80 147.(1935) 53 CLR 409; BC3590104

per Gordon J.

(where the shipowner had no

.

.

148.Marriott v General Electric Co Ltd (1935) 53 CLR 409 at 431; BC3590104

.

149.Marriott v General Electric Co Ltd (1935) 53 CLR 409 at 432–3; BC3590104 Rich, Dixon, Evatt and McTiernan JJ.

Ratification by acquiescence or delay

per Starke J. See also at 424–6 per

Page 4 of 6 Evidence of Ratification

5.31 Proof of the requisite unequivocality is more difficult again where that alleged to constitute ratification is the principal's silence or inaction. Yet ratification of an agent's unauthorised act can be implied from silence or acquiescence, provided that it cannot be explained sensibly on grounds other than an intention to adopt the agent's act.150. In other words, for evidence of acquiescence to amount to ratification, it must be equivalent to a clear adoptive act.151. The knowledge of the principal is critical here,152. for the principal must be

Page 119 proven to have ‘consciously sanctioned’153. the agent's act. Circumstances may dictate that the principal take positive steps to distance himself or herself from the agent's unauthorised act in order to avoid the inference that he or she has adopted the agent's act.For example, in Marriott v General Electric Co Ltd; City Bank of Sydney v Mcaughlin the High Court noted that:154. In general a man is not bound actively to repudiate or disaffirm an act done in his name but without his authority. But this is not the universal rule. The circumstances may be such that a man is bound by all rules of honesty not to be quiescent, but actively to dissent, when he knows that others have for his benefit put themselves in a position of disadvantage, from which if he speaks or acts at once, they can no longer escape.

Hence, where a putative principal knows that an agent has committed an unauthorised act on the principal's behalf, that persons who have dealt with the agent reasonably believe that they are dealing with the principal, and that in reliance thereon will or are likely to act in a manner detrimental to them unless their expectation is fulfilled, the principal may be obliged to actively disclaim the agent's unauthorised act or be held to have ratified it.155. In these circumstances, the longer the delay in disclaiming the act, the more likely it is that the principal will be held to have ratified it.156. The court must, therefore, consider the entirety of the circumstances surrounding the inaction said to constitute ratification.157.

150.Yona International Ltd v La Reunion Francaise SA d'Assurances [1996] 2 Lloyd's Rep 84 at 106 per Moore-Bick J. Acquiescence may alternatively constitute evidence of ostensible authority: see 20.26, 20.27, 20.65, 20.66. 151.Tobin v Melrose [1951] SASR 139 at 147 per Ligertwood J. See also Bank Melli Iran v Barclays Bank [1951] 2 TLR 1057 at 1063 per McNair J (‘it is plain that mere inaction or silence may be evidence from which a jury might infer an intention to ratify’); Commonwealth Bank of Australia v Perrin (2011) Q ConvR ¶54-765; [2011] QSC 274; BC201107193 at [146]

per McMurdo J (citing the second edition of this text with approval).

152.Taylor v Smith (1926) 38 CLR 48 at 54; BC2690110 Pty Ltd (2004) 182 FLR 431; [2004] NSWSC 56;

per Knox CJ; Permanent Trustee Co Ltd v Bernera Holdings BC200400430 at [62]

per Young CJ in Eq; Lederberger v

Mediterranean Olives Financial Pty Ltd [2012] VSCA 262; BC201208017 at [74] knowledge generally see 5.19–5.22. 153.Taylor v Smith (1926) 38 CLR 48 at 54; BC2690110

per the court. On this issue of

per Higgins J.

154.(1909) 9 CLR 615 at 625; BC0900009 per Griffith CJ and Barton J. See also Reid v Alaska Packing Co, 83 Pac 139 at 141 (SC Oregon 1905) (‘when an agent, in contracting for his principal, exceeds his authority, the principal, upon being fully informed of the facts, must, within a reasonable time, disavow or disaffirm the act of his agent … or he will be held to have ratified and affirmed such unauthorised act’); Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising and Addressing Co Pty Ltd [1975] VR 607 at 617

per Lush J (affd Crabtree-Vickers Pty Ltd v Australian

Direct Mail Advertising and Addressing Co Pty Ltd (1975) 133 CLR 72; BC7500063 ); Bullock v Utah, Department of Transportation, 966 P 2d 1215 at 1219 (Utah Ct App 1998) (a principal cannot ‘purposely shut his eyes to means of information within his possession and control and thereby escape ratification if the circumstances are such that he could reasonably have been expected to dissent unless he were willing to be a party to the transaction’); Geniki Investments International Ltd v Ellis Stockbrokers Ltd [2008] 1 BCLC 662; [2008] EWHC 549 (QB) at [45], [46] per Blair

Page 5 of 6 Evidence of Ratification J; Commonwealth Bank of Australia v Perrin (2011) Q ConvR ¶54–765 ; [2011]QSC 274; BC201107193 at [147] [149] per McMurdo J. 155.Though this exhibits overtones of estoppel, and is sometimes termed ‘estoppel by acquiescence’, there is no need for resort to estoppel because ratification implied from silence is in theory as much a ratification as ratification by express words, which requires no proof of estoppel: see 5.6. Cf Suncorp Insurance and Finance v Milano Assicurazioni SpA [1993] 2 Lloyd's Rep 225 at 235 per Waller J. per Waller J; Geniki Investments International Ltd v Ellis Stockbrokers Ltd [2008] 1 BCLC 662; [2008]EWHC 549 (QB) at [45], [46] per Blair J; Bowstead, p 87. 156.Lapraik v Burrows (The Australia) (1859) 13 Moo PCC 132 at 158; 15 ER 50 at 60 157.Australian Blue Metal Ltd v Hughes (1961) 79 WN (NSW) 498 at 514–15

per Dr Lushington.

per Jacobs J; Crabtree-Vickers Pty Ltd v

Australian Direct Mail Advertising and Addressing Co Pty Ltd [1975] VR 607 at 617

per Lush J (affd Crabtree-

Vickers Pty Ltd v Australian Direct Mail Advertising and Addressing Co Pty Ltd (1975) 133 CLR 72; BC7500063 ). Statements to the effect that it is the duty of the dissenting owner, if he or she dissents from the act of his or her unauthorised agent, ‘to express his dissent [to the purchaser] as soon as he was informed what [the purported agent] had done’ (Phillips v Homfray (1871) LR 6 Ch App 770 at 778 per Lord Hatherley LC) are arguably expressed in terms too absolute to reflect the modern law, for they effectively cast on a principal a duty to disclaim whenever he or she discovers unauthorised action by a purported agent.

5.32 So the period of delay that will constitute evidence of ratification varies according to the facts of each case. The case law reveals that delays of months, and on occasion even days, can trigger ratification,158. although this is influenced by the circumstances, including the relative position and knowledge of the parties and the urgency involved in their dealings. Certainly it is difficult to maintain that delays of years, when coupled with the knowledge of the principal of the agent's excess of authority, do not constitute ratification.

Page 120 The point is illustrated by McLaughlin v City Bank of Sydney,159. where the plaintiff's wife had been given a power of attorney while the plaintiff was insane, during which time she pledged deeds to the plaintiff's property to secure advances of money from the defendant. The plaintiff sought to disclaim his wife's acts as unauthorised over four years after he regained his sanity. Griffith CJ opined that if a person, on his or her return from a long absence (whether physical or mental), finds that during the absence a friend, purporting to act on his or her behalf has discharged his or her pressing debts, ‘very slight evidence of ratification of the agent's act is sufficient, and … if he fails for a long time to communicate with the creditors whose claims against him have been satisfied, the inference of ratification is irresistible’.160. The delay here was too long to deny ratification. Similarly, in Klement v Pencoal Ltd161. Derrington J held that, as the principal knew of the agent's forgery and did not disavow it for over three years, by which time the position was not remediable, the principal's deliberate silence amounted to ratification. In so ruling, his Honour was also influenced by evidence that the plaintiff accepted some of the benefits under the relevant transaction.

158.See, for example, the following cases where delay has been held to constitute ratification: Hodgson v Davies (1810) 2 Camp 530; 170 ER 1241 (five days' delay); Prince v Clark (1823) 1 B & C 186; 107 ER 70 (two months' delay); McDonald v Morrison (1895) 27 NSR 347 (six months' delay); Pulford v Loyal Order of Moose (1913) 14 DLR 577 (three months' delay). 159.(1912) 14 CLR 684; BC1290120 . Cf Sinclair v Hudson (1995) 9 BPR 16,259 at 16,262–3; BC9505359 Windeyer J (where insufficient time had elapsed for it to amount to ratification by acquiescence). 160.McLaughlin v City Bank of Sydney (1912) 14 CLR 684 at 691; BC1290120 161.[1999] QSC 90; BC9901837

at [53].

Prospective ‘ratification’ clauses in powers of attorney162.

.

per

Page 6 of 6 Evidence of Ratification

162.See Dal Pont, Powers of Attorney, [5.54]–[5.56].

5.33 A clause in a power of attorney whereby the principal ‘ratifies and confirms and agrees to ratify and confirm whatsoever the attorney shall do or purports to do’, or a clause to the same effect, is not to be construed as extending the actual authority given by the power of attorney.163. The reason for this was explained by Lord Atkin in Midland Bank Ltd v Reckitt, referring to such a clause:164. [I]t may amount to a promise to adopt acts done within the ostensible authority; and this strengthens the position of those who rely on the ostensible authority by an express promise as well as by an estoppel. If this be so it is difficult to see how the promise could be available except to someone who was aware of it and who acted on the strength of it. But in any case it would appear to be a highly improbable construction to suppose that a principal using this form has precluded himself from objecting to a dealing with his property by a person who had notice in the ordinary circumstances that the agent was exceeding his authority actual and ostensible. It would mean that the principal was saying either ‘I give you actual authority within defined limits but ostensible authority to do what you like with my property so long as you pretend (“purport”) to be doing it under this document’; or ‘I give you similar actual authority’. Such a construction would make powers of attorney a danger instead of a business facility and would certainly defeat the intention of any reasonable principal.

Hence, both the efficacy and the enforceability of prospective ratification clauses can be called into question. Not only are they ordinarily inconsistent with what one can presume to be the intention of a donor of a power of attorney, they also serve no purpose in broadening ostensible authority as third parties would be unaware of them. In addition, to speak of prospective ratification seems to contradict the essential attributes of ratification, which involves a retrospective creation of authority that did not previously exist. It is unsurprising therefore to find that Lord Atkin's doubts regarding such clauses have been shared by at least one Australian judge.165.

Page 121

163.Midland Bank Ltd v Reckitt [1933] AC 1 164.[1933] AC 1

at 18

at 18 per Lord Atkin.

.

165.Tobin v Broadbent (1947) 75 CLR 378 at 398; BC4700530

End of Document

per Starke J.

Effect of Ratification on the Agent Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 5: Agency by Ratification > Chapter 5 Agency by Ratification

Effect of Ratification on the Agent Please click on the link below to download the entire chapter.

5.34 If a ‘principal’ ratifies a contract effected by an ‘agent’ on the principal's behalf but in excess of the agent's actual authority, the principal is liable under the contract,166. and is entitled to take the benefit of the contract, and as such enforce its terms or seek damages for its breach.167. In addition to impacting on the rights of the principal against third parties, a valid ratification also impacts on the rights of the principal and third parties against the agent. This is discussed immediately below. So far as the principal is concerned, the main matter of contention in the case law concerns the extent to which ratification has retrospective effect, and what if any bars to this retrospectivity apply. This is, therefore, the subject of separate treatment.168.

166.Union Bank of Australia Ltd v Rudder (1911) 13 CLR 152 at 163; BC1190106 167.Hodgkiss v Rymill (1871) 5 SALR 139

per Griffith CJ.

; Commercial Banking Co of Sydney Ltd v Mann [1961] AC 1

at 9–10

per Viscount Simonds; Lawson (Inspector of Taxes) v Hosemaster Machine Co Ltd [1966] 1 WLR 1300 (CA).

at 1315

168.See 5.40–5.52.

Rights of principal against agent

5.35 In addition to circumventing the privity doctrine, ratification dictates that, in the case of an existing agency, the principal cannot, as a general rule, then proceed against the agent for acting in excess of actual authority.169. Proceedings of this kind are, however, available to the principal where the act in issue, though beyond the agent's actual authority, is nonetheless within his or her ostensible authority.170. This is because, even though a principal is estopped from denying the ostensible authority of an agent to a third party with whom the agent deals on the principal's behalf, the principal retains a cause of action against the agent for acting beyond actual authority.171.

169.Ricketson v Dean and Laughton (1870) 4 SALR 78 Co [1909] St R Qd 45

at 61 per Real J.

170.As to the doctrine of ostensible authority see Ch 20. 171.See 20.3.

at 81–2 per Wearing J; Cox v Mosman and Isles, Love &

Page 2 of 4 Effect of Ratification on the Agent

5.36 As ratification by the principal has the effect of entitling the principal to enforce the contract effected by the agent in excess of authority, it is reasoned that the principal should not in fairness retain any action against the agent for that excess. To this end, there is authority that the principal, upon ratification, loses any cause of action he or she may have had against the agent in respect of the act ratified even if the principal's enforcement of judgment against the defendant is frustrated by the latter's insolvency.172. This can be explained by the Scotch law rule that a plaintiff cannot ‘approbate and reprobate’, such that:173. A person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage.

172.Verschures Creameries Ltd v Hull and Netherlands Steamship Company Ltd [1921] 2 KB 608 5.29. 173.Verschures Creameries Ltd v Hull and Netherlands Steamship Company Ltd [1921] 2 KB 608 Scrutton LJ.

, as to which see

at 612 per

5.37 Even in Scotch law, though, it appears that a ratifying principal may maintain a claim against an agent acting outside authority if the principal has made his or her position clear, to this end, at the time of ratification.174. English law seems directed likewise. Waller J in Suncorp Insurance and Finance v Milano Assicurazioni SpA175. expressed the obiter view that where a principal opts to ratify a transaction for commercial reasons so as to preserve his or her commercial reputation ‘it should be possible for the principal to ratify as against the third party but not waive any breach of duty as against the agent’. His Lordship reasoned that the

Page 122 principal could make his or her position clear in this regard in view of the ‘two distinct but connected contractual relations’,176. namely the contract that the agent purported to make on the principal's behalf, and the contract between agent and principal. This led Waller J to phrase the relevant issue in two questions: ‘is there ratification of the contract which the agent has purported to make?’ and ‘has the principal waived the breach of duty if any vis-Ã vis the agent?’177. One can appreciate the rationale for Waller J's reluctance to conclude that ratification necessarily serves to exonerate an agent from proceedings by the principal for acting outside of authority. In circumstances where the principal is placed in a situation where, for commercial convenience, reputation or necessity, he or she has little choice but to ratify, it makes sense to entitle the principal to proceed against the agent for any loss suffered as a result of the unauthorised act. Yet it must be remembered that the cornerstone of his Lordship's formulation is a pre-existing agency relationship between principal and agent; on his logic the same outcome ought not follow where the ratification creates the relationship itself. Nor is the formulation necessarily easy to apply, as Waller J proffered no guidance as to the circumstances that do not lead to exoneration.178. It must arguably rest upon proof that, first, the principal made it clear that the agent was not to be exonerated, and second, the principal can prove a loss stemming from the agent's excess of authority. Where to ratify is financially advantageous to the principal, it may be difficult to

Page 3 of 4 Effect of Ratification on the Agent establish that latter element. The relative position and sophistication of the parties may also prove a relevant factor in this context, the concern being that professional agents, such as lawyers, not be shielded as a matter of course from liability for unauthorised acts by a client's ratification.179.

174.Wyatt v Crate [2013] PNLR 16; [2012] CSOH 197 at [30] per Lord Boyd. 175.[1993] 2 Lloyd's Rep 225 at 235. 176.Suncorp Insurance and Finance v Milano Assicurazioni SpA [1993] 2 Lloyd's Rep 225 at 235. 177.Suncorp Insurance and Finance v Milano Assicurazioni SpA [1993] 2 Lloyd's Rep 225 at 235. 178.Cf Delco Australia Pty Ltd v Darlington Futures Ltd (1986) 43 SASR 519 , a case involving unauthorised investments by a broker. Jacobs J considered that, even though the principal had apparently ‘adopted’ the unauthorised contracts, this did not serve to waive any remedy it might have had against its agent ‘who had thus stepped outside, and far outside, its contract of agency’: at 530. His Honour appeared to be influenced by the gross nature of the broker's excess of authority, but on the facts it must be queried whether the principal did in fact validly ratify those acts. The point was not addressed on appeal: Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500; BC8601387 ;. 179.National Insurance and Guarantee Corporation plc v Imperio Reinsurance Company (UK) Ltd [1999] Lloyd's Rep IR 249 at 260 per Colman J.

Rights of third parties against agent

5.38 Ratification functions to discharge the agent from any personal liability to the other party for breach of warranty of authority,180. the reason being that the third party will be unable to show damages. But if the terms of the contract properly construed make the agent personally liable in addition to the principal,181. a ratification of the contract by the principal does not absolve the agent from potential liability as a contracting party. The agent may, pursuant to an existing contractual right, claim commission for an act that has been ratified by his or her principal.182. Ratification does not, however, absolve the agent's liability for a tortious act, in which case both agent and principal will be jointly liable upon ratification of that act,183. provided that the principal has knowledge of the circumstances that make that act tortious.184.

180.As to the doctrine of breach of warranty of authority see 23.80–23.94. 181.See 23.3–23.41. 182.Keay v Fenwick (1876) 1 CPD 745 at 755 per James LJ, at 756 per Mellish LJ. 183.Stephens v Elwall (1815) 4 M & S 259; 105 ER 830; Hilbery v Hatton (1864) 2 H & C 822; 159 ER 341. 184.Freeman v Rosher (1849) 13 QB 780

; 116 ER 1462

. As to the ratification of tortious acts see 5.18.

Extent of authority conferred by ratification

5.39 Ratification does not of itself serve to confer upon the agent any further or future actual authority,185. although it will in all likelihood confer upon the agent authority to do something that arises directly out of the ratified act.186.

Page 4 of 4 Effect of Ratification on the Agent

185.Irvine v Union Bank of Australia (1877) 2 App Cas 366 per Beach J. 186.Leipner v McLean (1909) 8 CLR 306; BC0900035

End of Document

.

; McLachlan-Troup v Peters [1983] 1 VR 53

at 59–60

Extent of Retrospective Effect Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 5: Agency by Ratification > Chapter 5 Agency by Ratification

Extent of Retrospective Effect Please click on the link below to download the entire chapter.

General rule

5.40 Essentially, ‘[r]atification is equivalent … to original authority’,187. so that ‘the principal is bound by the act, whether it be for his detriment or advantage, or whether it be founded on a tort or a contract, to the same extent, and to all the consequences which follow from the same act if done by his previous authority’.188. Strictly speaking, it is not the act of the alleged agent which is ratified,189. but the principal's assumption of authority of the agent.190. The effect of ratification is thus the adoption of the relationship of agency assumed by the professing agent, the position being the same as if the agent had been vested with that authority at the outset.191. As a result, a ratification relates back to the unauthorised act of the agent that is ratified, and is a subsequent recognition of authority at the time.192. If the doctrine of ratification is truly to operate retrospectively, the validity of the act is to be adjudged as if it was authorised at the time it was committed, and events during the period intervening the act and the purported ratification should not affect the validity of the ratification. Yet it can be said with some certainty that the retrospective effect of the doctrine of ratification is not absolute. The extent to which this retrospectivity should be qualified is, however, the subject of conflicting authority. Isaacs J in Davison v Vickery's Motors Ltd (in liq)193. opined that the effect of ratification ‘varies according to the circumstances, including those existing at the time the fact occurs’, and that in each case the court should ask whether in the circumstances the purported ratification should be allowed to relate back to the origination of the transaction. Hence, there are certain circumstances where ‘ratification’ may come too late to be effective,194. although a perusal of the cases shows that ‘[w]hat the logic of the dividing line between the two should be is not easy to discern’.195. The point is developed further below.

Page 124

187.Union Bank of Australia Ltd v Rudder (1911) 13 CLR 152 at 163; BC1190106

per Griffith CJ.

188.Wilson v Tumman (1848) 12 LJ CP 306 at 308 per Tindal CJ (emphasis in original). See also Jones v Peters [1948] VLR 331

at 335 per Herring CJ.

189.Cf Wilson v Tumman (1848) 12 LJ CP 306 at 308 per Tindal CJ (‘an act done, for another, by a person, not assuming to act for himself, but for such other person, though without any precedent authority, would, indeed, become the act of the principal, if subsequently ratified by him’ (emphasis supplied in the second phrase)). 190.Davison v Vickery's Motors Ltd (in liq) (1925) 37 CLR 1 at 21; BC2500013

per Isaacs J, in dissent but not on this

statement of law. Cf Bayer Pharma Pty Ltd v Farbenfabriken Bayer Aktiengesellschaft (1965) 120 CLR 285 BC6500030 per Kitto J.

at 291;

191.Buron v Denman (1848) 2 Ex 167 at 188; 154 ER 450 at 459 per Parke B; Irvine v Union Bank of Australia (1877) 2 App Cas 366

at 374 per Sir Barnes Peacock; Attorney-General v Wylde (1946) 47 SR (NSW) 99

at 109 per

Page 2 of 12 Extent of Retrospective Effect Davidson J. This is expressed by the maxim omnis ratihabitio retrotrahitur et mandato priori aequiparatur: every ratification relates back and is equivalent to a prior authorisation. 192.Maclean v Dunn (1828) 4 Bing 722; 130 ER 947

; Spence v Inland Revenue Commissioners (1941) 24 TC 311

Bedford Insurance Co Ltd v Instituto de Resseguros do Brasil [1985] QB 966 Presentaciones Musicales SA v Secunda [1994] Ch 271 at 277 per Dillon LJ. 193.(1925) 37 CLR 1 at 21; BC2500013

;

at 981 per Parker J;

. His Honour was in dissent but not on this point of law.

194.Attorney-General v Wylde (1946) 47 SR (NSW) 99

at 115 per Davidson J.

195.Presentaciones Musicales SA v Secunda [1994] Ch 271

at 280 per Dillon LJ.

Estates that have vested cannot be divested — the Bird v Brown limitation

5.41 In an early leading case, Bird v Brown,196. Rolfe B stated that the doctrine of ratification ‘must be taken with the qualification, that the act of ratification must be taken at a time, and under circumstances, when the ratifying party might himself have lawfully done the act which he ratifies’. If this is correct, a putative principal must not only have had the capacity to do the act in question at the time when the agent committed the act,197. but must also have the legal capacity or ability to do that act at the time of purported ratification. Bird v Brown thus dictates that ‘if a time is fixed for doing an act, whether by statute or by agreement, the doctrine of ratification cannot be allowed to apply if it would have the effect of extending that time’.198. On this logic, one finds nineteenth century case law, such as Doe d Mann v Walters,199. to the effect that, if a notice to terminate a tenancy at a particular date had been given by the agent on behalf of the landlord but without authority, the notice could not be validly ratified by the landlord if at the date of the purported ratification it was too late for the landlord to have given a fresh notice to quit for the date for which the unauthorised notice had been given. Another nineteenth century example is Dibbins v Dibbins,200. where a partnership agreement gave the surviving partner an option to purchase the share of the deceased partner on giving notice in writing of his intention to do so within three calendar months of the death. Notice was given within the three months by the solicitor of the surviving partner, purportedly on his behalf but without his authority. The solicitor's action was ratified pursuant to an order of the court made after the expiration of the three months, but Chitty J held that the ratification came too late to have any effect. Yet rather than a ramification of Bird v Brown, cases of this kind are arguably better explained on the more general basis that ratification must take place within a reasonable time.201.

196.(1850) 4 Ex 786 at 799; 154 ER 1433 at 1439 (emphasis supplied). 197.See 5.14. 198.Presentaciones Musicales SA v Secunda [1994] Ch 271

at 279 per Dillon LJ. See also Adams v

Elphinstone(SC(Tas), Zeeman J, 22 June 1993, unreported) BC9300066

at 5.

199.(1830) 10 B & C 626 at 631–4; 109 ER 583 at 585–6 per Littledale and Parke JJ. 200.[1896] 2 Ch 348

.

201.See T Cheng Han, ‘The Principle in Bird v Brown Revisited’ (2001) 117 LQR 626 at 634–40. As to the requirement that ratification take place within a reasonable time see 5.23–5.25.

5.42 The Bird v Brown line of cases has also been explained according to the principle that an estate once vested cannot be divested, such that indefeasible or vested ownership in goods or property cannot be divested by the

Page 3 of 12 Extent of Retrospective Effect retrospective effect of a ratification of a previously unauthorised act.202. In the words of Roch LJ in Presentaciones Musicales SA v Secunda:203. [T]he putative principal will not be allowed to ratify the acts of his assumed agent, if such ratification will affect adversely rights of property in either real or personal property … which have arisen in favour of the third party or others claiming through him since the unauthorised act of the assumed agent.

Yet not only has it been legitimately queried as to whether the rule as to property rights has much to do with the principle in Bird v Brown,204. the existence of any absolute rule that a contract (or indeed any other act) cannot be ratified if the effect of ratification would be to divest an accrued property right has in any case been judicially questioned, albeit in obiter. In The ‘Borvigilant’ and ‘Romania G 205. Clarke LJ, with whom Dyson and Peter Gibson LJJ concurred, preferred to view the issue under the umbrella of the more general notion of ratification being ineffective where to permit it would unfairly prejudice a third party. In so remarking, his Lordship did not suggest that ratification ordinarily has the effect of divesting

Page 125 property rights — indeed he conceded that ‘in the vast majority of cases it would be unjust to the third party to give effect to a ratification if to do so would divest a vested property right’206. — but that any absolute rule should be tempered by an inquiry into third party prejudice. How this translates, if at all, into Australian law remains unclear in view of at least one obiter remark by an Australian judge expressing concern that concepts of prejudice and unfairness raise subjective and quasidiscretionary judgments that are undesirable in this context.207. Yet these concepts are consistent with the focus on unfair prejudice governing delay in ratification,208. and are familiar to the law in their application to the parallel concept of affirmation in contract.209.

202.Bolton Partners v Lambert (1889) 41 Ch D 295 (NSW) 99 203.[1994] Ch 271

at 307 per Cotton LJ. Cf Attorney-General v Wylde (1946) 47 SR

at 115 per Davidson J; Presentaciones Musicales SA v Secunda [1994] Ch 271 at 285

at 280 per Dillon LJ.

.

204.See T Cheng Han, ‘The Principle in Bird v Brown Revisited’ (2001) 117 LQR 626 at 630–4. 205.[2003] 2 Lloyd's Rep 520; [2003] EWCA Civ 935 at [70]

.

206.The ‘Borvigilant’ and ‘Romina G’ [2003] 2 Lloyd's Rep 520; [2003] EWCA Civ 935

at [87].

207.Adams v Elphinstone (SC(Tas), Zeeman J, 22 June 1993, unreported) BC9300066 at 6 (adding that ‘[i]t may well be appropriate to describe the relevant tests as falling into an overall category of unfair prejudice to a third party but only in a descriptive sense rather than as a test by reference to which the validity of a purported ratification is to be determined’). Cf Cheng Han, pp 155–6. 208.See 5.23. 209.See Carter, [18-47]–[18-51].

Offer withdrawn prior to ratification — the Bolton case

5.43 Bird v Brown was distinguished in Bolton Partners v Lambert,210. another leading nineteenth century English case. Bolton involved an offer made by the defendant to the agent of the plaintiff to purchase the plaintiff's property. The agent purported to accept the offer on behalf of the plaintiff, but had no actual authority to do so. The plaintiff purported to ratify that acceptance by the agent within a reasonable time,211. but the defendant had in the meantime withdrawn the offer. The English Court of Appeal held the ratification to be effective notwithstanding the withdrawal

Page 4 of 12 Extent of Retrospective Effect of the offer, and so the decision indicates that a contract purported to have been made by an agent without authority can, if and when ratified by the principal, render inoperative a revocation by the other party prior to the ratification.212.

210.(1889) 41 Ch D 295

.

211.As to the requirement that ratification be effected within a reasonable time see 5.23–5.25. 212.Attorney-General v Wylde (1946) 47 SR (NSW) 99

at 115 per Davidson J. See also Bedford Insurance Co Ltd v

Instituto de Resseguros do Brasil [1985] QB 966 at 981 per Parker J (‘if, after the making of a purported contract without authority, the other party seeks to withdraw, his withdrawal is ineffective as against a subsequent ratification’). There was some support pre-Bolton in English courts for such a view: see Wilson v Tumman (1843) 6 M & G 236 at 242–3; 134 ER 879 at 882 per Tindal CJ; Ancona v Marks (1862) 7 H & N 686 at 695–6, 697; 158 ER 645 at 647, 648 per Wilde B and Martin B respectively.

Justifications for the Bolton approach

5.44 The result in Bolton has been said to be justified on several grounds. First, Bolton involved no attempt by the doctrine of ratification to divest ownership of property or goods in a third party, and so cannot be seen as an example of ratification destroying accrued property rights. Prior to the withdrawal of the offer there was an acceptance by the agent that was valid subject to ratification, and as there was no final date for acceptance in Bolton, subsequent to acceptance it was not open to the defendant to withdraw the offer.213. Second, for the court in Bolton to have held otherwise would have been to deprive the doctrine of ratification of its retrospective effect. If the doctrine did not apply on the facts it would not apply in any case where the retrospective effect was necessary to make the ratification valid.214. However, this does not explain or justify why ratification should have such a retrospective effect. Third, for ratification to operate retrospectively to prevent withdrawal by the first party of an offer or acceptance is justifiable on the basis that ‘it does no more than put the first party in the situation he agreed to at the time of his offer or acceptance’.215. This justification is perhaps the most persuasive because the offeror, at the time of the purported acceptance by the agent,

Page 126 believed that he or she was contracting with the principal. A subsequent ratification of the agent's unauthorised act in no way frustrates the offeror's intention or belief; in fact, the lack of ratification would do so. In that the existence of a contract is grounded in the intention of the parties, for the law to permit the offeror to avoid a contract on the basis of a matter independent of the offeror's intention could arguably be seen as inconsistent with a tenet of contract law.

213.Presentaciones Musicales SA v Secunda [1994] Ch 271 214.Bolton Partners v Lambert (1889) 41 Ch D 295

at 279 per Dillon LJ.

at 310 per Lopes LJ.

215.Hughes v NM Superannuation Pty Ltd (1993) 29 NSWLR 653

Application to insurance contracts

5.45

at 664 per Sheller JA.

Page 5 of 12 Extent of Retrospective Effect The aforesaid view enjoys some support in Australian case law at least in the context of insurance contracts. McHugh JA in Trident General Insurance Co Pty Ltd v McNiece Bros Pty Ltd216. held that contracts of insurance fall into a special category in which ratification by a principal after loss can operate retrospectively. In reaching this conclusion his Honour rejected a line of English authority to the contrary217. (which has now lost favour in English law anyway).218. Instead McHugh JA followed American authorities critical of the English approach,219. reasoning that, merely because the law denies a person entry into a contract of insurance when the person is aware that a loss has already taken place, it does not follow that after loss the principal cannot ratify a policy made before loss.In so concluding, his Honour noted that to hold the insurance company to the contract did not impose on it any burden that it did not intend to undertake at the outset. The matter was explained in the following terms:220. The insurer's bargain in this class of case is made with an assumed principal. He acts on the basis that the agent has authority and, if he has not obtained proof of the agent's authority, takes the risk that the agent has no authority. No one doubts that the policy can be ratified before loss. Why should it make any difference that it is ratified after loss? The insurer's risk has remained the same. If the policy is not ratified after loss — an unlikely occurrence— the insurer has no ground for complaint. In any event if the policy is not ratified, the insurer always has an action for breach of warranty of authority against the agent. It is true that the principal who ratifies after loss obtains in one sense a windfall. But the insurer is in no worse position than he bargained for.

Yet what proved decisive in McHugh JA's conclusion was that it was consistent with and promoted the rationale of insurance, namely loss distribution, which in turn may serve to limit its application to insurance cases. An agent is unlikely to purport to insure on behalf of a principal unless he or she has a general connection with the principal, and so will usually do so where he or she is unable to obtain instructions from the principal but expects ratification to be forthcoming. His Honour considered that this action by the agent on his or her own initiative to protect the property or interest of the principal makes it proper that the principal should be able to ratify even after loss. But if before loss the principal learns of the policy and

Page 127 fails to ratify, the proper inference will usually be that the principal has elected not to ratify;221. the principal cannot approbate and reprobate.

216.(1987) 8 NSWLR 270 at 279–81 CLR 107; BC8802625 Sheller JA.

(affd Trident General Insurance Co Pty Ltd v McNiece Bros Pty Ltd (1988) 165

). See also Hughes v NM Superannuation Pty Ltd (1993) 29 NSWLR 653

217.This commenced with Grover & Grover Ltd v Mathews [1910] 2 KB 401

at 665 per

, and was followed in Ferguson v

Aberdeen Parish Council [1916] SC 715 at 718 (where it was said that ‘in an insurance effected by A on the goods of B without the knowledge of B, B cannot adopt the contract of insurance after a loss has occurred’) and Portavon Cinema Co Ltd v Price and Century Insurance Co Ltd [1939] 4 All ER 601. 218.In National Oilwell (UK) Ltd v Davy Offshore Ltd [1993] 2 Lloyd's Rep 582 at 607–8 Colman J made the obiter remark that, as Canadian, American and Australian courts had all permitted ratification of nonmarine policies after the loss has occurred to the knowledge of the ratifying party, there was ‘neither legal principle nor commercial reason why the English Courts should not take the same approach’. 219.Marqusee v Hartford Fire Insurance Co,; 198 F 475 (1912) (cert denied 299 US 621 (1913)); Stock v Reliance Insurance Co,; 238 NE 2d 420 (1968) . His Honour also noted that it was established that a policy of marine insurance could be ratified after loss (see Hagedorn v Oliverson (1814) 2 M & S 485; 105 ER 461; Williams v North China Insurance Co (1876) 1 CPD 757 at 764 per Cockburn CJ, at 769 per Mellish LJ) but conceded that the authorities and text writers are divided on the question whether ratification of other contracts of insurance can take place after the occurrence of the loss: Trident General Insurance Co Pty Ltd v McNiece Bros Pty Ltd (1987) 8 NSWLR 270 220.Trident General Insurance Co Pty Ltd v McNiece Bros Pty Ltd (1987) 8 NSWLR 270 221.Ratification must be effected within a reasonable time: see 5.23–5.25.

at 280–1.

at 279.

Page 6 of 12 Extent of Retrospective Effect

Drawbacks of the Bolton approach

5.46 The Bolton view is not without its difficulties. In Davison v Vickery's Motors Ltd222. Isaacs J opined that, as the retrospective effect of ratification in conferring an antecedent authority is a fiction223. — the doctrine having been intended to prevent mischief or to remedy an inconvenience that might result from the doctrine of privity of contract — it should not be invoked as to cause injury by altering the ordinary course of law. The ordinary course of law, at least by way of analogy, dictates that an offer can, even if it is promised to remain open for a period of time, be revoked at any time prior to its acceptance unless the offeree has given consideration.224. The purported acceptance by the agent in Bolton was not a valid acceptance because it did not bind the principal; there was at that time no effective meeting of the minds and so no legal relations.225. Only when ratified by the principal before the withdrawal or revocation of the offer would legal relations be created. Indeed, this is the approach favoured by agency law in the United States,226. although the Restatement adds what it describes as a ‘stronger justification’ for rejecting the Bolton approach, focusing on fairness to the third party in the third party's relationship to the principal and agent:227. If the agent duped the third party into believing the agent had authority, it is fair to permit the third party to withdraw. The third party's mistake is comparable to a mistaken belief that makes the transaction voidable … The principal's ratification, however, ‘cures’ the mistake, giving the third party what was anticipated originally. If the third party realizes that the agent lacked authority to bind the principal, permitting the third party to withdraw prior to the principal's ratification is consistent with the third party's initial expectations. It is fair to release a third party who manifests an intention to withdraw from an indefinite period of uncertainty about whether and when the principal may ratify.

Moreover, for the law to permit the third party to withdraw prior to ratification by the principal gives an incentive to the principal not to delay ratification, and in so doing reduces the risk that the principal will use ratification to speculate at the expense of the third party.228.

Page 128

222.(1925) 37 CLR 1 at 18–19; BC2500013 . See also Kidderminster Corporation v Hardwich (1873) LR 9 Ex 13 (the outcome in which was inconsistent with Bolton, but the court in Bolton did not refer to it; but see Greig and Cunningham, [1.028]); Fleming v Bank of New Zealand [1900] AC 577 at 587 (PC) (where Lord Lindley noted that Bolton presented difficulties, and reserved the right to reconsider its correctness if necessary); Grose v Bank of New South Wales (1910) 11 SR (NSW) 24 at 27–8 per A H Simpson CJ in Eq (who distinguished Bolton unconvincingly, conveying the impression that he thought the decision was wrongly decided); Adams v Elphinstone (SC(Tas), Zeeman J, 22 June 1993, unreported) BC9300066 at 6 (who doubted whether Bolton remained good law). Cf Powercor Australia Ltd v Pacific Power [1999] VSC 110; BC9907547 at [1551]–[1571] per Gillard J (who, though noting that Bolton had not escaped criticism, remarked that it ‘nevertheless represents the considered opinions of four eminent judges’ (at [1556]), and applied it to the facts before him, which were ‘indistinguishable from the facts in Bolton Partners v Lambert’ (at [1571])). 223.See 5.3. 224.See Carter, [3-43]–[3-50]. 225.Cf Bolton Partners v Lambert (1889) 41 Ch D 295

at 308–9 per Lindley LJ.

226.Restatement (3d) §4.05; W A Seavey, ‘The Rationale of Agency’ (1920) 29 Yale LJ 859 at 891 (who argued that ‘[t]o say that to allow the third person to withdraw before [the principal] has had a reasonable opportunity to ratify is to “deprive the doctrine of its retroactive effect” and cause it not to be “equipollent to a prior command” is to worship the fiction of relation back as a transcendental shrine and justifies the harshest language used by the critics of the doctrine’

Page 7 of 12 Extent of Retrospective Effect (footnotes omitted)); T G Pappas, ‘Rescission by Third Party Prior to Principal's Ratification of Agent's Unauthorised Action’ (1948) 2 Vand L Rev 100. Cf Fridman, pp 99–100. 227.Restatement (3d) §4.05, Comment c. 228.Restatement (3d) §4.05, Comment c.

5.47 There are further difficulties as a matter of principle with the Bolton approach. One of these is captured as follows by a commentator:229. [I]t is one thing to say that ratification retrospectively clothes the agent with authority, thereby legitimising the agent's acts; it is quite another to say that ratification validates a contract entered into between the unauthorised agent and the third party where the third party has attempted to escape from the contract prior to the act of ratification. The distinction is a valid one for until ratification takes place, there is no contract enforceable either by the agent or the principal. In the absence of any right or obligation in favour of the principal or the agent, it is hard to see why the third party may not withdraw from the transaction entered into by him.

Also, the same commentator notes that the result in Bolton does not sit well with that in Walter v James,230. which stands for the accepted principle that, if the act that the putative principal later seeks to ratify has been undone or cancelled by the assumed agent, there can be no effective ratification. Yet if ratification may be prevented by way of agreement between the agent and the third party to undo the transaction, this presupposes that a concluded contract existed until affirmation by the principal rather than on authority conferred on the agent to rescind the contract.231. The latter is inconsistent with the rationale in Bolton, but Cotton and Lindley LJJ in Bolton treated Walter v Jamesas correctly decided.

229.T Cheng Han, ‘The Principle in Bird v Brown Revisited’ (2001) 117 LQR 626 at 628–9. 230.(1871) LR 6 Ex 124

, discussed at 5.50.

231.T Cheng Han, ‘The Principle in Bird v Brown Revisited’ (2001) 117 LQR 626 at 629–30. See further Cheng Han, pp 146–51.

Conclusion

5.48 In view of the foregoing, even if Bolton remains part of Australian law, with the exception of insurance contracts, it is likely to ‘be limited to the type of conditions with which it dealt’.232. As such, it can be argued that it does not upset the Bird v Brown–induced disinclination to deny complete retrospective effect to ratification where this would interfere with the property rights of third persons.233. Where, conversely, ratification has the consequence of confirming a title without prejudicing a third party,234. or is aimed at perfecting a memorandum in writing in order to satisfy statutory formality requirements,235. it can function retrospectively to the full extent. Thus the issue is one of determining to what extent the doctrine of ratification should be permitted to vary established law. As a parallel thought, it is interesting to note that the courts' justification for denying effect to ratification by an undisclosed principal is that this would involve coupling one fiction (ratification) with another (the doctrine of undisclosed principal).236. Yet as noted elsewhere,237. the distinction between antecedent and subsequent authority (via ratification) in its application to undisclosed principals is arguably grounded in judicial policy rather than principle, in that the other contracting party is in both cases unaware that the agent contracts for a

Page 8 of 12 Extent of Retrospective Effect principal. In Bolton the court nonetheless gave effect to ratification even though this allowed an exception to the contractual privity doctrine to oust another contractual doctrine.

232.Attorney-General v Wylde (1946) 47 SR (NSW) 99

at 115 per Davidson J.

233.(1850) 4 Ex 786; 154 ER 1435, as to which see 5.41. 234.Lawson (Inspector of Taxes) v Hosemaster Machine Co Ltd [1966] 1 WLR 1300 235.Maclean v Dunn (1828) 4 Bing 722; 130 ER 947

at 1316 (CA).

; Koenigsblatt v Sweet [1923] 2 Ch 314

.

236.As to the doctrine of undisclosed principal see 19.28–19.47. 237.See 19.46, 19.47.

Contracting ‘subject to ratification’

5.49 The above difficulties with the Bolton approach are largely circumvented where the agent contracts on the principal's behalf ‘subject to ratification’ by the principal. By contracting expressly in that manner, the purported agent clearly informs the other contracting party that the agent does not, at the time of contracting, have the authority to bind the principal, and

Page 129 that a legally binding contract with the principal is contingent on the principal ratifying the agent's act. The other contracting party thus knows the contract to be a nullity until ratification. To suggest that pending ratification a binding contract has been concluded in such a case denies the necessity of both consensus and the intent to enter legal relations as elements of a contract.238. For example, in Watson v Davies239. the defendant, who offered to sell property to the board of management of a charity, was told by the chairman of the board (the plaintiff) that board members present at a meeting had resolved to accept the offer subject to a formal meeting at which a quorum could be attained. On the day of the latter meeting, the defendant telegraphed the plaintiff cancelling all negotiations. The meeting passed the resolutions to purchase the property, and then sought specific performance. Maugham J denied the plaintiff's claim and, in distinguishing Bolton, reasoned as follows:240. In a case where the agent for one party to a negotiation informs the other party that he cannot enter into a contract binding his principal except subject to his approval, there is in truth no contract or contractual relation until the approval has been obtained. The agent has incurred no responsibility. In Bolton Partners v Lambert the decision of the Court was, I think, founded on the view that there was a contractual relation of some kind which could be turned into a contract with the company by a ratification, whilst in the absence of ratification there was a right of action against the agent for breach of warranty of authority.241. It was admitted that there could be no ratification of a legal nullity. An acceptance by an agent subject in express terms to ratification by his principal is legally a nullity until ratification, and is no more binding on the other party than an unaccepted offer which can, of course, be withdrawn before acceptance.

As noted earlier in this chapter,242. there can be no ratification of a legal nullity, and so where an offeror knows that the purported acceptance of itself has no legal effect, it makes sense that the offeror is able to revoke the offer at any time prior to being notified of the ratification, which is that which constitutes the acceptance. Only if the purported agent has provided consideration for the offer to remain open for a specified time will the offeror be denied the right to revoke the offer within that time, this being due to the option contract with the agent.

Page 9 of 12 Extent of Retrospective Effect

238.Warehousing & Forwarding Company of East Africa Ltd v Jafferali & Sons Ltd [1964] AC 1 Guest. 239.[1931] 1 Ch 455

at 9–10 per Lord

.

240.Watson v Davies [1931] 1 Ch 455

at 468–9 (footnote supplied). See also Goodison Thresher Co v Doyle (1925) 57

OLR 300; Warehousing & Forwarding Company of East Africa Ltd v Jafferali & Sons Ltd [1964] AC 1 at 9 per Lord Guest (remarking that the Bolton rule does not apply where the third party ‘has intimation of the limitation of the agent's authority’). 241.As to the doctrine of breach of warranty of authority see 23.80–23.94. 242.See 5.15, 5.16.

Act undone or cancelled by purported agent

5.50 If the act that the putative principal later seeks to ratify has been undone or cancelled by the assumed agent, there can be no effective ratification. The logic is that there remains no act for the principal to ratify.243. The undoing or cancellation of the act serves to inform the other contracting party that the agent lacked the authority to bind the principal by the act in question, and so places that party in an analogous position to one who contracts with an agent ‘subject to ratification’. Aside from a potential cause of action against the agent for breach of warranty of authority,244. the other contracting party knows the transaction to be a legal nullity, and a principal cannot ratify a legal nullity.245.

Page 130 For example, in Walter v James246. the amount of a debt owed by the defendant to the plaintiff was disputed. The agent of the defendant paid the plaintiff £60 in discharge of the disputed claim after the defendant had withdrawn the agent's authority. The agent then sought and obtained repayment of the £60 from the plaintiff, following which the plaintiff sued the defendant for the entire debt. The defendant unsuccessfully argued that he was entitled to ratify the agent's payment of the £60, the court reasoning that the plaintiff and the agent were, prior to the defendant's purported ratification, entitled to cancel what they had done and so the plea of payment by the defendant was not proved.

243.Presentaciones Musicales SA v Secunda [1994] Ch 271

at 285 per Roch LJ.

244.As to the doctrine of breach of warranty of authority see 23.80–23.94. 245.See 5.15, 5.16. 246.(1871) LR 6 Ex 124 . Walter v Jameshas been endorsed as correct by both the English Court of Appeal in Presentaciones Musicales SA v Secunda [1994] Ch 271 and Moore-Bick J in Pacific & General Insurance Company Ltd v Hazell [1997] 6 Re LR 157 at 170–1 (who rejected the argument that Walter v James should be regarded as a decision on its own facts, opining that ‘all members of the court in Walter v James were approaching the question as one of principle and expressed themselves in terms which are of general application’).

Ratification of legal proceedings commenced by agent

5.51 An interesting application of the above principles is where a person commences legal proceedings purportedly for a principal, and the principal subsequently ratifies those proceedings. Jenkins LJ stated the basic law applicable in this context in Danish Mercantile Co Ltd v Beaumont:247.

Page 10 of 12 Extent of Retrospective Effect

[A] solicitor who starts proceedings in the name of a [client] without verifying whether he has proper authority so to do, or under an erroneous assumption as to the authority, does so at his own peril, and … so long as the matter rests there, the action is not properly constituted. In that sense, it is a nullity and can be stayed at any time, provided that the aggrieved defendant does not unduly delay his application; but it is open at any time to the purported plaintiff to ratify the act of the solicitor who started the action to adopt the proceedings, to approve all that has been done in the past, and to instruct the solicitor to continue the action. When that has been done, then, in accordance with the ordinary law of principal and agent and in accordance with the ordinary doctrine of ratification, in my view, the defect in the proceedings as originally constituted is cured; and it is no longer open to the defendant to object on the ground that the proceedings thus ratified and adopted were, in the first instance, brought without proper authority.

247.[1951] Ch 680

at 687–8

. See also 688–9 per Hodson LJ; Reynolds v Howell (1873) LR 8 QB 398

at 399–400

per Blackburn J; Alexander Ward & Co Ltd v Samyang Navigation Co Ltd [1975] 1 WLR 673 at 679–80 per Lord Hailsham, at 683–4 per Lord Kilbrandon; Harry S Bagg Liquidation Warehouse Pty Ltd v Whittaker (1982) 44 NSWLR 421 at 430; BC8200008 per Powell J; Re Manias (1986) 15 FCR 1 at 3 per Jackson J (who held that there was no reason why this principle should not apply in the presentation of a petition for a sequestration order); Presentaciones Musicales SA v Secunda [1994] Ch 271 at 277 per Dillon LJ; Ox Operations Pty Ltd v Land Mark Property Developments (Vic) Pty Ltd (in liq) [2007]FCA 1221; BC200706519

at [2] per Finkelstein J; Multitec FBM (Asia

Pacific) Pty Ltd v Han (2008) 69 ACSR 106; [2008] NSWSC 1339; BC200811017 v Body Corporate for No 9 Port Douglas Road [2013] QCA 168; BC201310383 [62] per Douglas J.

at [29] per Sackville AJ; McEvoy at [28]–[42] per Holmes JA, at [59]–

5.52 So it is clear that, as a general principle, where a solicitor starts proceedings in the name of a plaintiff without authority to do so, the plaintiff may ratify the act of the solicitor and adopt the proceedings. Where some difficulty may arise is if the timing of the act of ratification is outside the limitation period whereas the act of the solicitor as purported agent is within that period. If the effect of ratification is to be truly retrospective, it should make no difference to the legitimacy of the proceedings when the act of ratification occurred. What must be determined is whether circumstances of this kind should activate an exception to retrospectivity. A leading case is Presentaciones Musicales SA v Secunda.248. In April 1988 solicitors, in the mistaken belief that they had authority from their client, a Panamanian company, issued a writ on behalf of the plaintiff company against the defendants. When in March 1991 the defendants discovered that the plaintiff had been dissolved and that liquidators were appointed in 1987, they issued a motion for the stay of proceedings or the striking out of the claim against

Page 131 them as an abuse of process. In May 1991 the plaintiff's liquidators purported to ratify the acts of the solicitors during 1988 and adopt the proceedings as their own. The issue before the English Court of Appeal involved whether an English action, commenced in the name of a foreign company without its authority within a three-year limitation period after its dissolution as prescribed by the foreign law, could be ratified by the liquidators or trustees of the company outside of that limitation period. Roch LJ noted that ‘where the putative principal seeks to ratify not a contract but an act done by an assumed agent — in this case the issuing of the writ — the first question is whether that act existed at the moment of the purported ratification’.249. As the writ, which came into existence in 1988, remained in existence unless and until it was struck out as being an abuse of process, it still existed at the moment of the purported ratification. As the writ was not a nullity, the ratification was valid unless it would cause undue prejudice to the other party. To this end, his Lordship

Page 11 of 12 Extent of Retrospective Effect addressed the issue of whether the notion that ‘an estate once vested cannot be divested’250. should prevent giving effect to the ratification. Roch LJ held it should not, reasoning as follows:251. [T]he putative principal will not be allowed to ratify the acts of his assumed agent, if such ratification will affect adversely rights of property in either real or personal property including intellectual property, which have arisen in favour of the third party or others claiming through him since the unauthorised act of the assumed agent. The expiry of the limitation period in the present case does not create any such right in the defendants; if applicable it would merely bar the plaintiff company's remedies. I would not extend this exception to cases such as the present where a defendant would receive a windfall defence in a case where the vice against which the Limitation Acts are designed to protect defendants, namely the bringing of claims at a time so far after the occurrence of the cause of action that the defendant is put at a disadvantage in defending the claim, does not exist.

Dillon LJ, with whom Nolan LJ agreed, reached the same conclusion, adopting similar reasoning. His Lordship made reference to the English Court of Appeal's decision in Pontin v Wood,252. which involved a writ that was defective for non-compliance with certain rules of court, which the plaintiff sought to rectify by procedural steps not requiring leave of the court. The court held that as the writ was not a nullity, the defects were cured by those steps even though the applicable limitation period had expired after the issue of the writ but before the remedial steps to cure its defects were taken. As the defendant was at all times aware of the nature of the action that the writ was intended to initiate, the defect in the writ caused him no difficulty.253. The outcome would have differed had the plaintiff sought to add a new party or cause of action after the expiration of the limitation period, because in such a case the plaintiff would have required the leave of the court to do something to the detriment of the defendant that, without such leave, the plaintiff had no right to do.254. According to Dillon LJ, although Pontin v Woodwas not a case of ratification of an agent's unauthorised acts, ‘on the same general principle that justifies Pontin v Wood, the plaintiff, in the simple example of an action raising a single cause of action which has been begun by solicitors without authority, must be entitled to adopt the action notwithstanding the expiration of the limitation period applicable to that cause of action’.255. In that a writ issued without authority

Page 132 is not a nullity,256. for the nominal plaintiff to adopt the writ, or ratify its issue, required no application to the court, and no consequent detriment or prejudice to the defendant.

248.[1994] Ch 271

.

249.Presentaciones Musicales SA v Secunda [1994] Ch 271

at 285.

250.See 5.41. 251.Presentaciones Musicales SA v Secunda [1994] Ch 271 252.[1962] 1 QB 594

at 285–6.

.

253.Pontin v Wood [1962] 1 QB 594

at 612 per Holroyd Pearce LJ.

254.Pontin v Wood [1962] 1 QB 594

at 616 per Davies LJ.

255.Presentaciones Musicales SA v Secunda [1994] Ch 271 at 280. See also Dillon v Baltic Shipping Co (The ‘Mikhail Lermontov’ (No 2))(SC(NSW), Carruthers J, 28 May 1993, unreported)BC9301730. 256.Pontin v Wood [1962] 1 QB 594 ; Jennings v Credit Corp Australia Pty Ltd (2000) 48 NSWLR 709 at 720; [2000] NSWSC 210; BC200001307 per Santow J; Ox Operations Pty Ltd v Land Mark Property Developments (Vic) Pty Ltd (in liq) [2007] FCA 1221; BC200706519 at [2] per Finkelstein J (who added that in the context of a corporate plaintiff, because ratification is possible, a practice has developed that when an action is brought without authority it will not be stayed or dismissed forthwith, but the company will be permitted to convene a general meeting or a meeting of its directors to consider whether to adopt the action: SBA Properties Ltd v Craddock [1967] 1 WLR 716

at 722

Page 12 of 12 Extent of Retrospective Effect per Goff J); McEvoy v Body Corporate for No 9 Port Douglas Road [2013] QCA 168; BC201310383 Holmes JA, with whom Margaret McMurdo P and Douglas J concurred.

End of Document

at [28]–[32] per

Partial Ratification Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 5: Agency by Ratification > Chapter 5 Agency by Ratification

Partial Ratification Please click on the link below to download the entire chapter.

Proscription against partial ratification

5.53 It is well established that ‘a party cannot repudiate part of a transaction and ratify the rest’ but ‘must adopt altogether or not at all’.257. Ratification, it is said, ‘cannot be selective’;258. the agency must be accepted complete with all its attendant obligations. The reason is that a putative principal cannot both approbate and reprobate — both deny liability for the agent's unauthorised act and at the same time take advantage of that act where the act constitutes an integral whole.259. The difficulty is to say what the whole is and what is only a part.260. To ratify a single transaction or act does not encompass multiple independent transactions effected at around the same time or during the same general course of conduct.261. Yet this does not prevent ‘[d]istinct but interrelated components of economic activity among the same parties’262. constituting a single transaction for purposes of this rule. In Union Bank of Australia v McClintock263. the Privy Council advised that the appellant could not ratify the unauthorised and fraudulent act of its manager in obtaining cheques only for the purpose of having title to sue, and in so doing avoid liability for the manager's subsequent dealings with the drafts for which the cheques were exchanged. The treatment of the manager's obtaining of the cheques and his subsequent dealing with them as one transaction was the subject of cogent criticism by Professor Hornby, who reasoned as follows:264. [I]t is difficult to see why this should be so. Suppose that a principal authorises his agent to obtain for him a bank cheque and that the agent, having done so, fraudulently misappropriates it. Nobody would suggest here that the agent's two acts in obtaining and then misappropriating the bank cheque amounted to one transaction and that the principal's authority for the act of obtaining covered also the subsequent dealing with the bank cheque. If the obtaining is initially

Page 133 unauthorised, but is subsequently ratified, why should the two distinct acts of obtaining and subsequent dealing with the bank cheque now be regarded as one transaction?

257.Pringle v McKay [1922] NZLR 818

at 825–6 per Sim J, citing Keay v Fenwick (1876) 1 CPD 745 at 753 per Lindley

J and Bristow v Whitmore (1861) 9 HL Cas 391 at 418; 11 ER 781

at 791 per Lord Chelmsford. See also Hovil v

Pack (1806) 7 East 163; 103 ER 63; Republic of Peru v Peruvian Guano Co (1887) 36 Ch D 489

at 498–500 per

Chitty LJ; Cox v Mosman and Isles, Love & Co [1909] St R Qd 45 at 61 per Real J; Suncorp Insurance and Finance v Milano Assicurazioni SpA [1993] 2 Lloyd's Rep 225 at 235 per Waller J. Cf Turner v Webb (1941) 42 SR (NSW) 68 .

Page 2 of 3 Partial Ratification 258.Cheng Han, p 144. 259.Union Bank of Australia v McClintock [1922] 1 AC 240 Kennedy (1889) 14 App Cas 437

at 247 per Lord Sumner (PC). See also Lyell v

at 461 per Earl of Selborne; Commercial Banking Co of Sydney Ltd v

Mann [1961] AC 1 at 11–12 (PC); Canadian Laboratory Supplies Ltd v Engelhard Industries of Canada Ltd (1977) 78 DLR (3d) 232 at 246–7 per Blair JA (CA(Ont)) (appeal allowed in part but not on this point: Canadian Laboratory Supplies Ltd v Engelhard Industries of Canada Ltd (1979) 97 DLR (3d) 1 ) (contra at 236–7 per Lacourciere JA in dissent, who considered that Union Bank of Australia v McClintock and Commercial Banking Co of Sydney Ltd v Mann should be limited to transactions involving negotiable instruments). 260.On this point see further J A Hornby, ‘Ratification of Acts of a Fraudulent Agent’ (1961) 24 MLR 271 at 272–3; Powell, p 138; Stoljar, pp 186–7. 261.Fitzmaurice v Bayley (1860) 9 HL Cas 78 at 112; 11 ER 657 at 670 per Lord Chelmsford. 262.Restatement (3d) §4.07, Comment c. 263.[1922] 1 AC 240

. Cf Harrisons & Crossfields Ltd v London and North Western Railway Co [1917] 2 KB 755

.

264.J A Hornby, ‘Ratification of Acts of a Fraudulent Agent’ (1961) 24 MLR 271 at 272–3.

5.54 In a different context, but one that also highlights the difficulty in this area, consideration should be given to the late nineteenth century decision of the Full Court of the Victorian Supreme Court in Langlands Foundry Company Ltd v Worthington Pumping Engine Company.265. There an agent effected on its principal's behalf a contract for the delivery of an engine by an agreed date, which prescribed penalties for non-delivery by that date. This the agent did without the principal's authority. The principal nonetheless subsequently purported to ratify the contract. The court held that the principal was not liable for the penalties for nondelivery because:266. … there is no evidence to satisfy us that the [principal] before the contract was made knew of and assented to the stipulation that the agents … were to deliver the engine within a specified time, nor is there any evidence that the [principal] knew of or assented to the condition that it should be liable to the penalties mentioned in the contract. So that the position is this, that the contract made by the agents … with the plaintiff company is so far as it binds the [principal] a contract to deliver the engine within a reasonable time.

Yet it must be queried whether the principal could properly be said to have ratified the contract. In that a valid ratification is premised on the principal having, at the time of the ratification, full knowledge of all the material facts and circumstances pertaining to the agent's unauthorised act,267. one must query how a principal who lacks knowledge of the terms of an unauthorised contract can validly ratify that contract. An outcome of this kind opens the opportunity for principals to ‘close their eyes’ and thus secure the apparent benefits but not be subject to the burdens of a contract effected on their behalf without authority, an outcome that is unjust. Langlands can alternatively be explained as a case in which the principal ratified some but not all of the agent's unauthorised acts,268. although it is unclear how such a rule avoids the aforesaid difficulty. It must be noted that had the principal, rather than the third party, sought to enforce the contract in Langlands, it could have sued only upon the entire contract, not merely upon the terms to which it was privy.

265.(1896) 22 VLR 144. 266.Langlands Foundry Company Ltd v Worthington Pumping Engine Company (1896) 22 VLR 144

at 154–5.

267.See 5.19–5.22. 268.This is the explanation given by K E Lindgren, Vermeesch and Lindgren's Business Law of Australia, 12th ed, LexisNexis Butterworths, Australia, 2011, [19.17].

Page 3 of 3 Partial Ratification

Pre-contractual statements by agent

5.55 A pre-contractual statement by an intending contracting party (or the agent of such a party) can operate as a term of the contract (‘warranty’), or can constitute a separate contract collateral to the main contract.269. Where the warranty is given by an agent of a contracting party (the principal), which the agent does not have actual or ostensible authority to give, the principal may elect to either ratify or repudiate the contract so long as it remains executory, but cannot force on the other party a new contract that omits the unauthorised term. As a principal would only wish to do the latter if the term in question was to his or her disadvantage, to permit him or her to follow this course would be to allow the inappropriate outcome that the principal could secure the benefit of a contract induced by a warranty in respect of which he or she is not bound. So a principal who ratifies the contract is bound by it according to its actual terms, whether authorised or unauthorised, and cannot thereafter disclaim the authority of the agent to have made a contract in those terms.270. Nor in such circumstances can the principal disclaim responsibility for any fraud perpetrated by the agent in negotiating the contract.271.

Page 134

269.Gardiner v Grigg (1938) 38 SR (NSW) 524

at 531 per Jordan CJ. See further Carter, [10-02]–[10-14].

270.Union Bank of Australia Ltd v Rudder (1911) 13 CLR 152 271.Gardiner v Grigg (1938) 38 SR (NSW) 524

at 163 per Griffith CJ.

at 531 per Jordan CJ.

5.56 Where, however, the unauthorised warranty given by the agent operates as a contract collateral to the main contract between the parties, the latter is authorised whereas the collateral one is not. As a result, the principal is bound by and entitled under the main contract, but is not bound contractually by the unauthorised collateral contract. Thus the principal can insist upon the contract made by the agent, but at the same time repudiate contractual liability for any unauthorised collateral contract of warranty.272. In such a case the other contracting party may be able to sue the agent for breach of warranty of authority.273.

272.Gardiner v Grigg (1938) 38 SR (NSW) 524

at 531–2 per Jordan CJ.

273.As to the doctrine of breach of warranty of authority see 23.80–23.94.

End of Document

Chapter 6 Agency Arising by Operation of Law Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 6: Agency Arising by Operation of Law Page 135

Chapter 6 Agency Arising by Operation of Law [Current to September 2013] Please click on the link below to download the entire chapter. Agency of Necessity

6.2

Scope of application

6.2

Bills of exchange and marine adventure

6.3

Application to carriers by land

6.4

‘Necessity’

6.5

Application in bailment relationships

6.7

Basis for agency of necessity Agency Arising out of Cohabitation Relationship

6.11 6.12

6.1 An agency can arise by operation of law, that is, irrespective of assent or intention (whether prospective or retrospective) in two main circumstances: in cases of necessity, and in cases of cohabitation. It has also been suggested that ostensible agency ‘is really agency by operation of law, in that it is only because the law regards the situation as one having the effect of an agency relationship in toto or for specific purposes that such relationship may be said to arise’.1. This is logical in the sense that cases of agency by estoppel do not depend upon proof that the principal consented to the agent acting in an unauthorised fashion (for were this so the case would arguably be one of actual authority), but on the impression created on third parties of the scope of the (purported) agent's authority. Yet in that agency by estoppel is based on a representation by the principal as to the agent's authority, it can equally be viewed as resting on the proper interpretation of the conduct, evidencing the intention or inferred assent, of the principal. It is treated in the latter fashion in Chapter 20 of this text.

1.

Fridman, p 19.

End of Document

Agency of Necessity Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 6: Agency Arising by Operation of Law > Chapter 6 Agency Arising by Operation of Law

Agency of Necessity Please click on the link below to download the entire chapter.

Scope of application

6.2 An agency can arise by operation of law, that is, irrespective of assent or intention, in cases of necessity.2. The phrase ‘agent of necessity’ is a convenient expression used in rationalising to some extent the rights and obligations created in certain circumstances of emergency. It has been described as ‘a “shorthand” method of saying that such circumstances may create an authority to act in relation to the property of another person or to impose a liability upon him

Page 136 which would not exist in ordinary circumstances’.3. In his treatise on agency Story described the basis of agency of necessity as follows:4. Although the powers of agents are, ordinarily, limited to particular acts; yet … extraordinary emergencies may arise, in which a person, who is an agent, may, from the very necessities of the case, be justified in assuming extraordinary powers; and … his acts, fairly done, under such circumstances, will be binding upon his principal.

At common law, there is no general rule that a person who has de facto custody of goods, whether by virtue of bailment or otherwise, is legally entitled to sell or mortgage those goods; agency of necessity is therefore an exceptional doctrine.5. Moreover, given the judiciary's traditional and justifiable reluctance to recognise legal relationships in private law to which neither party assented, whether antecedently or subsequently, it can be only in cases of real ‘necessity’ or emergency that such an outcome has been upheld.6. To this end, many of the older cases in which agency of necessity has been alleged involved wartime conditions.7.

2.

Bruton v Regina City Policemen's Association, Local No 155 [1945] 3 DLR 437 at 457 per MacDonald JA (CA(Sask)). See G W Treitel, ‘Agency of Necessity’ (1954) 3 UWALR 1.

3.

Burns Philp & Co Ltd v Gillespie Brothers Pty Ltd (1947) 74 CLR 148 at 175; BC4700120 but not on this point.

4.

C P Greenough, Story on Agency, 9th ed, Little, Brown, Boston, 1882, s 141. See also China Pacific SA v Food

per Latham CJ, in dissent

Corporation of India [1982] AC 939 at 958 per Lord Diplock (‘Whether one person is entitled to act as agent of necessity for another person is relevant to the question whether circumstances exist which in law have the effect of conferring on him authority to create contractual rights and obligations between that other person and a third party that are directly enforceable by each against the other’), at 965 per Lord Simon (‘One of the ways in which an agency of necessity can arise is where A is in possession of goods the property of B, and an emergency arises which places those goods in imminent jeopardy: If A cannot obtain instructions from B as to how he should act in the circumstances, A is bound to take without authority such action in relation to the goods of B, as a prudent owner, would himself have taken in the circumstances’).

Page 2 of 9 Agency of Necessity 5.

Barker v Burns Philp & Co Ltd (1944) 45 SR (NSW) 1

6.

Bank of New South Wales v Owston (1879) 4 App Cas 270 SR (NSW) 1

7.

at 16 per Jordan CJ. at 290 (PC); Barker v Burns Philp& Co Ltd (1944) 45

at 16 per Jordan CJ.

See, for example, Prager v Blatspiel, Stamp and Heacock Ltd [1924] 1 KB 566 KB 254

; Barker v Burns Philp & Co Ltd (1944) 45 SR (NSW) 1

; Jebara v Ottoman Bank [1927] 2

.

Bills of exchange and marine adventure

6.3 The doctrine of agency of necessity took its rise from two main types of cases: the case of the acceptor of a bill of exchange for the honour of the drawer;8. and cases of marine adventure.9. In the former context, the acceptor is, regarding the person for the sake of whose honour he or she accepts or pays, subrogated to the rights of the holder of the bill. The ‘necessity’ arises from the prospect of the person primarily liable on the bill being placed in a difficult situation. In cases of marine adventure, traditionally agents of necessity were confined to masters of ships who, finding themselves in foreign parts and being unable to obtain immediate instructions from the owners when they needed money for unplanned expenses, were conferred as agents of necessity the power to pledge, sell or hypothecate the ship, and in some cases to deal with the cargo.10. For example, in Lapraik v Burrows (The Australia)11. upon her arrival in Hong Kong, and also during her sojourn there, a ship required extensive repairs to make her seaworthy. The master could not afford to make the repairs. The Privy Council advised the master was justified in selling the ship on the grounds of necessity. Dr Lushington stated the law as follows:12. The necessity which the law contemplates is not an absolute impossibility of getting the vessel repaired; but if the ship cannot be sent upon her voyage without repairs, and if the repairs cannot

Page 137 be done except at so great and so certain a loss that no prudent man would venture to encounter it, that constitutes a case of necessity.

The above operates as an exception to the general rule that, unless in a particular case a term giving authority is expressed or can be implied in the contract of carriage, neither the shipowner nor the master has authority to bind cargo owners.13. Dixon J in Burns Philp & Co Ltd v Gillespie Brothers Pty Ltd explained:14. The principle is a consequence of the position of the master who represents the shipowner but has charge of the goods under affreightment for the joint benefit of the shipowner and the cargo owner or shipper, and, as bailee, is under a duty to take care of the goods and preserve them not merely during the ordinary incidents of the voyage but where by reason of the exceptions of the bill of lading there is no original liability … The masters' so called agency of necessity is a corollary or complement of this obligation.

8.

Hawtayne v Bourne (1841) 7 M & W 595 at 599–600; 151 ER 905 at 907 per Parke B.

9.

Prager v Blatspiel, Stamp and Heacock Ltd [1924] 1 KB 566

at 568 per McCardie J.

Page 3 of 9 Agency of Necessity 10. Hopper v Burness (1876) 1 CPD 137; Hingston v Wendt (1876) 1 CPD 367 (sale or hypothecation of cargo where necessary to effect repairs to, or to salvage, the ship); Sachs v Miklos [1948] 2 KB 23 at 35 per Lord Goddard CJ; Industrie Chimiche Italia Centrale and Cerealfin SA v Alexander G Tsavliris & Sons Maritime Co (The ‘Choko Star’) [1990] 1 Lloyd’s Rep 516 at 525 per Slade LJ. 11. (1859) 13 Moo PCC 132; 15 ER 50

.

12. Lapraik v Burrows (The Australia) (1859) 13 Moo PCC 132 ; Industrie Chimiche Italia Centrale and Cerealfin SA v Alexander G Tsavliris & Sons Maritime Co (The ‘Choko Star’) [1990] 1 Lloyd’s Rep 516; Industrie Chimiche Italia Centrale and Cerealfin SA v Alexander G Tsavliris & Sons Maritime Co (The ‘Choko Star’) [1990] 1 Lloyd’s Rep 516 at 144; 15 ER 50 at 55. 13. Industrie Chimiche Italia Centrale and Cerealfin SA v Alexander G Tsavliris & Sons Maritime Co (The ‘Choko Star’) [1990] 1 Lloyd’s Rep 516 at 520, 523–4 per Parker LJ, at 525–7 per Slade LJ (discussed in I Brown, ‘Authority and Necessity in the Law of Agency’ (1992) 55 MLR 414). 14. (1947) 74 CLR 148 at 190; BC4700120 . See also Industrie Chimiche Italia Centrale and Cerealfin SA v Alexander G Tsavliris & Sons Maritime Co (The ‘Choko Star’) [1990] 1 Lloyd’s Rep 516 at 520–4 per Parker LJ, at 525–7 per Slade LJ; China Pacific SA v Food Corporation of India [1982] AC 939

at 958 per Lord Diplock.

Application to carriers by land

6.4 Although there are nineteenth century judicial statements questioning whether it was possible to enlarge the classes of person who could be regarded as agents of necessity,15. this no longer represents the law.16. In that ‘[a]n expanding society demands an expanding common law’,17. the courts have not had difficulty in applying the doctrine where a necessity has arisen in the case of carriers by land.18. Lord Goddard CJ stated the circumstances where a court may so conclude in Sachs v Miklos:19. There is no reason why, if it becomes commercially impossible, or extraordinarily difficult, for example, in the case of a strike or other breakdown of communications, for a carrier to communicate with the owner of goods, he should not be entitled to sell or dispose of them in the same way as a master of a ship. I know, however, of no case in which the doctrine of the agency of necessity has been applied to carriers by land except where the goods are perishable or in a somewhat similar category, that is to say, livestock, which have to be tended, fed and watered.

For example, in Springer v Great Western Railway Company20. the plaintiff engaged the defendant to arrange carriage of a quantity of tomatoes. The defendant put the tomatoes on board a steamship for that purpose, but because of bad weather and a strike the tomatoes could not be unloaded until some six days later. Fearing the deterioration of the tomatoes, the defendant arranged their sale. Defending a claim by the plaintiff for damages for breach of the contract of carriage, the defendant argued that the sale was effected as an agent of necessity.The English Court of Appeal rejected this defence, Scrutton LJ explaining the matter as follows:21. [T]o justify a sale by the railway company they must first show that it was commercially impossible to communicate with the owner and receive instructions from him. If they show that, they must then show that a sale was in the circumstances the only reasonable business course to take. In this

Page 138 case, on September 24, when the tomatoes arrived at Weymouth in a ship three days late, with a railway strike just begun, it was fairly obvious that there was a serious risk of the tomatoes not getting to London in a condition which would justify sending them on. In those circumstances it was, in my view, the duty of the railway company to ask the consignee for instructions. They were not intended to take upon themselves the duty of settling what should be done with the goods if there was any reasonable commercial possibility of obtaining instructions from the owner.

Page 4 of 9 Agency of Necessity

15. See, for example, Hawtayne v Bourne (1841) 7 M & W 595 at 599; 151 ER 905 at 907 per Parke B; Gwilliam v Twist 1895] 2 QB 84 at 87 per Lord Esher. 16. Prager v Blatspiel, Stamp and Heacock Ltd [1924] 1 KB 566

at 569–70 per McCardie J.

17. Prager v Blatspiel, Stamp and Heacock Ltd [1924] 1 KB 566

at 570 per McCardie J.

18. Sims & Co v Midland Railway Company [1913] 1 KB 103 Great Northern Railway Co v Swaffield (1874) LR 9 Ex 132 of agency of necessity to a land carrier. 19. [1948] 2 KB 23

at 35

at 112 per Scrutton J. See also the earlier case of , where the Court of Exchequer had applied the doctrine

(emphasis supplied). See also Barker v Burns Philp & Co Ltd (1944) 45 SR (NSW) 1

at 16 per Jordan CJ. Cf Jebara v Ottoman Bank [1927] 2 KB 254 at 270–1 per Scrutton LJ (who queried whether the extension of the doctrine of agency of necessity was justified in cases involving other than a pre-existing agency, such as in the case of a finder of perishable chattels or animals). 20. [1921] 1 KB 257

.

21. Springer v Great Western Railway Company [1921] 1 KB 257

at 267. See also at 265–6 per Bankes LJ.

‘Necessity’

6.5 An agency of necessity cannot arise if the agent can communicate with the principal by some reasonably practicable and timely means,22. or where there is no necessity for the agent to do the act in question.23. The relevant time, for the purposes of considering whether there was a necessity, is the time when the existence of a supposed agency became apparent.24. There may be circumstances of such urgency that the agent must act at once without waiting for instructions,25. and the urgency of the required reply will impact on the means that may reasonably be adopted in seeking that reply. So an agency of necessity may be upheld where such communication is possible and has been effected but ‘no sufficient instructions were received in time to give [the agent] a reasonable opportunity of complying with them before it became necessary to act’.26.

22. Gwilliam v Twist [1895] 2 QB 84 at 87 per Lord Esher MR, at 88 per AL Smith LJ (‘The impossibility of communicating with the principal is the foundation of the doctrine of an agent of necessity’); Prager v Blatspiel, Stamp & Heacock Ltd [1924]1 KB 566 at 571 per McCardie J; Barker v Burns Philp & Co Ltd (1944) 45 SR (NSW) 1 at 16–18 per Jordan CJ; Bruton v Regina City Policemen's Association, Local No 155 [1945] 3 DLR 437 at 457 per MacDonald JA (CA(Sask)); Burns Philp & Co Ltd v Gillespie Brothers Pty Ltd (1947) 74 CLR 148

at 176 per Latham

CJ (in dissent but not on this point), at 191 per Dixon J; BC4700120 . It has been said that the alleged agent must exercise due diligence in this regard: Barker v Burns Philp & Co Ltd at 19 per Jordan CJ. See, for example, Acatos v Burns (1878) 47 LJQB 566 (sale of perishable goods to prevent loss held not to be authorised out of necessity because the situation was not so dire as to require the immediate sale; there was time to communicate with the owners of the goods). 23. Bank of New South Wales v Owston (1879) 4 App Cas 270 Huth (1880) 16 Ch D 474

at 290–1 (PC); Atlantic Mutual Insurance Co v

at 481–2 per Cotton LJ; Sims & Co v Midland Railway Company [1913] 1 KB 103

at 112 per Scrutton J; Prager v Blatspiel, Stamp & Heacock Ltd [1924] 1 KB 566 Barker v Burns Philp & Co Ltd (1944) 45 SR (NSW) 1

at 16–18 per Jordan CJ.

at 571 per McCardie J;

Page 5 of 9 Agency of Necessity 24. Food Corporation of India v China Pacific [1981] QB 403 Pacific SA v Food Corporation of India [1982] AC 939

at 424 per Megaw LJ (approved on appeal: China at 965 per Lord Simon).

25. Burns Philp & Co Ltd v Gillespie Brothers Pty Ltd (1947) 74 CLR 148 at 176; BC4700120 but not on this point. 26. Barker v Burns Philp & Co Ltd (1944) 45 SR (NSW) 1

per Latham CJ, in dissent

at 18 per Jordan CJ.

6.6 As facilities for communication have improved, the occasions for invoking an agency of necessity have diminished.27. Moreover, in that an agent of necessity is empowered to sell or dispose of another person's goods or incur expenses in relation to them without that person's express or implied authority, the courts are justified in being slow to broaden the number of classes of people who can be looked on as agents of necessity28. and reticent to water down the concept of ‘necessity’. To this end, ‘necessity’ has been treated as analogous to a ‘real emergency’, although within this it can be seen in terms of ‘commercial necessity’.29. Given the exceptional nature of agency of necessity, the onus lies on the alleged agent to justify his or her action or upon the third party seeking to bind the principal in the circumstances.30.

Page 139

27. Burns Philp & Co Ltd v Gillespie Brothers Pty Ltd (1947) 74 CLR 148 at 191; BC4700120 28. Jebara v Ottoman Bank [1927] 2 KB 254 6 per Lord Goddard CJ.

per Dixon J.

at 270–1 per Scrutton LJ; Sachs v Miklos [1948] 2 KB 23

29. Australian Steam Navigation Co v Morse (1872) LR 4 PC 222

at 35–

at 231 per Sir Montague Smith. See also James

Phelps & Co v Hill [1891] 1 QB 605 at 610 per Lindley LJ (defining ‘necessity’ as meaning that what is done is ‘reasonably necessary, and in considering what is reasonably necessary any material circumstance must be taken into account, for example, danger, distance, accommodation, expense, time and so forth’). 30. Prager v Blatspiel, Stamp & Heacock Ltd [1924] 1 KB 566 Ltd (1944) 45 SR (NSW) 1

at 571 per McCardie J; Barker v Burns Philp & Co

at 19 per Jordan CJ.

Application in bailment relationships

6.7 The courts have not been especially welcoming to attempts to constitute bailees of goods as agents of necessity, largely on the ground that the requisite necessity has not been established. The case law illustrates that agency of necessity derives its justification not to remove an inconvenience to the possessor (bailee) of goods, or otherwise to benefit the possessor, but to foster the interests of the owner (bailor) in circumstances of necessity where the owner has not provided instructions.31. Moreover, where the relationship between the parties is one of bailor and bailee, the law of bailment rather than any agency of necessity will often resolve any issue between the parties.32. It is for this reason that most of the cases in which an agency of necessity has been upheld involve an existing contractual relationship between the parties.33. In any event, to deal with the disposal of goods in bailment relationships, legislation exists in all jurisdictions that prescribes the circumstances in which uncollected goods may be disposed,34. and so the following case examples must be read subject to this legislation.

Page 6 of 9 Agency of Necessity

31. China Pacific SA v Food Corporation of India [1982] AC 939 at 965–6 per Lord Simon (who further noted that in cases where the agent's objectives are mixed, such as where the agent acts partly to preserve a lien over the goods, the court may look to the ‘interest mainly served or the dominant motive’: at 966). This does not change even if agency of necessity is seen as arising on the grounds of contractual implication (see, for example, Barker v Burns Philp & Co Ltd (1944) 45 SR (NSW) 1 at 22–3 per Street J), because a court will not imply a term on the grounds of business efficacy which operates in a purely one-sided fashion: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; BC8200083

.

32. China Pacific SA v Food Corporation of India [1982] AC 939

at 965 per Lord Simon.

33. For an example of a case where an agency of necessity was held to arise outside of a pre-existing contractual relationship see Hawtayne v Bourne (1841) 7 M & W 595 at 599–600; 151 ER 905 at 907 per Parke B (involving an acceptor of a bill of exchange for honour of the drawer). 34. Uncollected Goods Act 1996 (ACT); Uncollected Goods Act 1995 (NSW); Uncollected Goods Act 2004 (NT); Disposal of Uncollected Goods Act 1967 (Qld); Unclaimed Goods Act 1987 (SA); Disposal of Uncollected Goods Act 1968 (Tas); Australian Consumer Law and Fair Trading Act 2012 (Vic) Pt 4.2; Disposal of Uncollected Goods Act 1970 (WA).

6.8 Sachs v Miklos35. illustrates the strictness of the judicial approach in this context. In 1940 the plaintiff (the bailor) arranged with the defendants (the bailees) for the latter to gratuitously store his furniture in their house. In 1944 the defendants wished to terminate this arrangement, and wrote to the plaintiff requesting him to remove his furniture. Receiving no reply they wrote again stating that lacking instructions they would sell the furniture. The defendants also unsuccessfully attempted to contact the plaintiff by telephone. The defendants then sold the furniture at auction for £13. In 1946 the plaintiff sued for detinue and conversion for the current value of the furniture, which was £115. Lord Goddard CJ held that the defendants were not agents of necessity because there was no ‘emergency’ on the facts in question. His Lordship reasoned as follows:36. In this particular case, whatever else there may have been, there was certainly no emergency. It was not a case where the house had been destroyed and the furniture left exposed to thieves and the weather. There was nothing perishable here in the sense in which that term is used when applied to goods. The fact was that [the defendants] — and small blame to them — wished to be rid of this furniture which they were storing as a mere act of courtesy and friendship, as to which the plaintiff showed no anxiety or intention, at that time, to have it back, and which was in their way. Their house was their means of livelihood, through the letting of lodgings or taking in of boarders, and naturally they wanted as much space as possible.If they were not entitled to sell as agents of necessity, then, however hard it may be on them, I cannot avoid the conclusion that, in sending the property to the auctioneers to sell, they were guilty of conversion. They were selling the plaintiff's property without his authority.

Page 140

35. [1948] 2 KB 23

.

36. Sachs v Miklos [1948] 2 KB 23

6.9

at 36.

Page 7 of 9 Agency of Necessity Yet one wonders what practical solution the defendants in Sachs v Miklos had other than the course they followed.37. An easier case perhaps is Munro v Willmott,38. which involved the owner of a car leaving it for nearly three years in the yard of an inn with the consent of the licensee. The licensee found the car to be causing difficulty to drivers who used the yard and, being unable to trace its owner, had it repaired at a cost of £85 and then sold it by auction for £105 (less £5 commission). The value of the car was £120 at the time of judgment. Lynskey J, having cited from Sachs v Miklos, doubted whether the doctrine of agency of necessity could apply in respect of goods stored on premises, but that, if it could, ‘it can only be applied in a case of real emergency which necessitates the disposal of the goods’. His Lordship held that the licensee was not an agent of necessity on the following basis:39. In this case I am not satisfied that there was any emergency at all: the most that can be said for the defendant is that the motor car, after June or July, 1945, became something of an inconvenience, not to himself, but to others who might be using the converted stables as garages for the use of their ambulances. There is no real evidence that there was any necessity for the defendant to dispose of the car. He may have found it inconvenient — to some degree a nuisance; but that is not an emergency which compels him to dispose of it. It could have been left where it was. I am satisfied that there was no real emergency which, if the doctrine did apply to this case, would justify the sale by the defendant of this motor car. The plaintiff is therefore entitled to recover damages for the detention, or, alternatively, the conversion of the car.

The strict curial approach to claims of agency of necessity persists. In another motor vehicle case, Surrey Breakdown Ltd v Knight,40. police instructed the appellant breakdown service to remove a stolen vehicle from a pond. The appellant sought to recover the removal and storage charges from the owner on the basis that it acted as an agent of necessity for the owner. Sir Christopher Staughton, with whom Henry LJ concurred, ruled that it could not reasonably be said that the appellant, in taking the car out of the pond, was doing so because necessity compelled it to do so without the authority of the owner.41. As this was not a common law case of agency of necessity, the court rejected the claim.

37. In Duet Marketing Corp v Spetifore (1986) 32 BLR 148 at 159–60 Southin J expressed the hope that Sachs v Miklos would be overruled by the House of Lords or not followed in Canada ‘at least in cases where … the defendant has no practical solution except sale’. 38. [1949] 1 KB 295

.

39. Munro v Willmott [1949] 1 KB 295 40. [1999] RTR 84

at 297–8.

.

41. Surrey Breakdown Ltd v Knight [1999] RTR 84

at 88.

6.10 Even if a dealing is justified on the grounds of necessity, the possessor of the goods remains an ‘agent’, and as such must bona fide deal with the goods in a manner that advances the interests of the owner and must account for the proceeds of those dealings to the owner.42. However, an agent who incurs reasonable expenses in safeguarding the principal's goods by reason of necessity is entitled to an indemnity from the principal.43. For example, it has been held that the carriers of a horse, finding no one to receive it at their destination, were entitled to recover for maintaining it.44. However, the same is unlikely to be the outcome where there

Page 141 is no pre-existing contractual relationship between the parties, as this would be inconsistent with the law's reluctance to impose benefits or burdens on a person behind his or her back.45.

Page 8 of 9 Agency of Necessity 42. Tronson v Dent (1853) 8 Moo PC 419 at 452; 14 ER 159 at 172 (PC); Springer v Great Western Railway Company [1921] 1 KB 257

at 267 per Scrutton LJ; Prager v Blatspiel, Stamp & Heacock Ltd [1924] 1 KB 566

at 572–3 per McCardie J. 43. Petrinovic & Co Ltd v Mission Francaise des Transports Maritimes (1941) 71 Lloyd’s Rep 208 at 220; Croskery v at 589 per McGregor J; China Pacific SA v Food Corporation of India [1982] AC 939 Gee [1957] NZLR 586 at 965 per Lord Simon. As to an agent's right of indemnity see 18.8–18.20. 44. Great Northern Railway Co v Swaffield (1874) LR 9 Ex 132

. See also Walker v Great Western Railway Co (1867)

LR 2 Ex 228 ; Langan v Great Western Railway Co (1873) 30 LT 173 588–9 per McGregor J.

; Croskery v Gee [1957] NZLR 586

at

45. Fridman, p 140. Cox v Midland Counties Railway Co (1849) 2 Ex 268; 154 ER 844, where a surgeon operating on an injured passenger of a railway was held not entitled to recover the cost thereof from the railway company even though he was acting at the request of the doctor normally employed by the railway company, can be explained on this basis. See also the cases of persons denied an indemnity for the costs of looking after stray animals: Binstead v Buck (1777) 2 Wm Bl 1117; 96 ER 660; Nicholson v Chapman (1793) 2 H Bl 254; 126 ER 536. Cf G W Treitel, ‘Agency of Necessity’ (1954) 3 UWALR 1 at 11–12; K Mason, J W Carter and G J Tolhurst, Mason and Carter's Restitution Law in Australia, 2nd ed, LexisNexis Butterworths, Australia, 2008, [822].

Basis for agency of necessity

6.11 Though agency by necessity has been classified as a form of implied agency,46. such a characterisation carries with it the notion that it is somehow based on intention, albeit intention inferred from the circumstances. Yet in that the court's principal inquiry in alleged cases of this kind is the fact of ‘necessity’ or ‘emergency’, any reference to intention must be an intention imputed to the parties in view of the circumstances. In the words of Latham CJ in Burns Philp & Co Ltd v Gillespie Brothers Pty Ltd:47. Agency of necessity arises from action in circumstances of necessity and not from any real or presumed agreement between the person who becomes an ‘agent of necessity’ and the person in whose interest he has acted.

Thus it is better to avoid reference to intention (whether actual, implied or imputed) altogether, and instead focus on whether the circumstances were such as to justify the law entitling the possessor of goods to deal with them without the authority of the owner. However, it has rightly been noted that many of the leading ‘necessity’ cases could be explained purely upon the extent of the implied authority in dispute without reference to the narrow confines of agency of necessity.48. In view of the fact that these cases were propounded at a time antedating the modern doctrine of ostensible authority, when notions of implied authority were more confined than they are nowadays, it may be that reassessment of the basis of the necessity cases is warranted.49. There is also scope for the necessity cases to come within the modern law of restitution and thereby break from the shackles of agency doctrine.50.

Page 142

46. See, for example, Barker v Burns Philp & Co Ltd (1944) 45 SR (NSW) 1 at 22–3 per Street J; Bruton v Regina City Policemen's Association, Local No 155 [1945] 3 DLR 437 at 456 per MacDonald JA (CA(Sask)) (note, however, that locating agency of necessity as a subset of implied agency is difficult to reconcile with his Honour's earlier identification of an agency of necessity arising by operation of law). 47. (1947) 74 CLR 148 at 175; BC4700120 , dissenting but not in this statement of law (emphasis supplied). See also The ‘Gratitudine’ (1801) 3 C Rob 240 at 260; 165 ER 450 at 457 per Lord Stowell (‘the character of the agent … is

Page 9 of 9 Agency of Necessity thrown upon the master, by the policy of the law, acting on the necessity of the circumstances in which he is placed’); Fridman, pp 133–4 (who likewise distinguishes between an authority created by implication as opposed to by operation of law, characterising the latter as a ‘presumed’ authority). 48. I Brown, ‘Authority and Necessity in the Law of Agency’ (1992) 55 MLR 414 at 415–16. As to the implied authority of agents see Ch 8. 49. Bowstead, p 157. 50. See the discussion in C Mitchell, P Mitchell and S Watterson, Goff and Jones: The Law of Unjust Enrichment, 8th ed, Sweet & Maxwell, London, 2011, Ch 18; K Mason, J W Carter and G J Tolhurst, Mason and Carter's Restitution Law in Australia, 2nd ed, LexisNexis Butterworths, Australia, 2008, [822], [823].

End of Document

Agency Arising out of Cohabitation Relationship Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 6: Agency Arising by Operation of Law > Chapter 6 Agency Arising by Operation of Law

Agency Arising out of Cohabitation Relationship51.

51. The coverage of this topic in this text is necessarily brief because of its limited relevance in modern Australian law. For more extensive coverage see I J Hardingham, ‘Husband's Credit for Necessaries’ (1980) 54 ALJ 661; Fridman, pp 144– 50; Bowstead, 17th ed, 2001, pp 138–43 (note that this topic has been removed from the current edition of Bowstead on the ground that ‘social habits have changed since the various times at which these cases were decided, and will continue to do so’: p 146).

Please click on the link below to download the entire chapter.

6.12 The common law presumed that a man's wife, including a de facto wife or mistress, had authority to pledge the man's credit for necessaries.52. The basis was said to be that, as the domestic arrangements of the family were usually left under the wife's control, ‘her authority extends to all those matters which fall within her department, as, for instance, the supply of provisions for the house, clothing for herself and children, and things of that sort’.53. At the time, as a wife could not own separate property and was not personally liable on her contracts, there was a need to protect third parties dealing with a wife or woman of the household. It was also recognised by the common law that a wife left without adequate means of support by her husband, such as in the case of desertion, had authority to pledge the husband's credit for goods that she reasonably required for her maintenance.54. In neither case did this authority extend beyond necessaries,55. which, although interpreted by the courts on a relative as opposed to absolute scale, did not extend to articles and matters ‘of mere luxury’56. or to cases in which provision for the proper maintenance of the woman had been made.57. The relevant authority was deemed to arise by operation of law as a matter of necessity and, being a presumption of fact, could be rebutted by evidence denying the authority or the premise upon which it was based.58.

52. Debenham v Mellon (1880) 6 App Cas 24 53. Phillipson v Hayter (1870) LR 6 CP 38

at 33 per Lord Selborne LC, at 36 per Lord Blackburn. at 41 per Bovill CJ. See also Miss Gray Ltd v Earl Cathcart (1922) 38 TLR

562 at 565 per McCardie J (who held that necessaries covers ‘the reasonable supply of goods and services for the use of the husband, his wife, children and household’). No equivalent authority applied in the context of children with respect to their parents: Shelton v Springett (1851) 11 CB 452; 138 ER 549 54. Phillipson v Hayter (1870) LR 6 CP 38

.

at 41 per Bovill CJ, at 42 per Willes J; Debenham v Mellon (1880) 6 App Cas

24 at 31 per Lord Selborne LC, at 35 per Lord Blackburn; Biberfield v Berens [1952] 2 QB 770 at 781 per Singleton LJ, at 784–5 per Hodson LJ. See G W Treitel, ‘The Deserted Wife's Right to Pledge her Husband's Credit for Necessaries’ (1953) 16 MLR 221. 55. For examples of ‘necessaries’ see I J Hardingham, ‘Husband's Credit for Necessaries’ (1980) 54 ALJ 661 at 667.

Page 2 of 2 Agency Arising out of Cohabitation Relationship 56. Phillipson v Hayter (1870) LR 6 CP 38 at 42 per Bovill CJ (where the court held that charges for, inter alia, a guitar and music did not come within necessaries). 57. Debenham v Mellon (1880) 6 App Cas 24

at 31 per Lord Selborne LC, at 35 per Lord Blackburn.

58. On the issue of rebuttal see I J Hardingham, ‘Husband's Credit for Necessaries’ (1980) 54 ALJ 661 at 663–4.

6.13 In the territories, New South Wales and South Australia, statute has abolished the doctrine of agency of necessity so far as the authority of wives is concerned.59. In New South Wales, for instance, the legislation reads: A married person does not, by reason only of the person's status as a spouse, have authority to pledge the credit of the other spouse for necessaries or to act as agent for the other spouse for the purchase of necessaries.

Even in those jurisdictions where statute has not intervened, it appears that the doctrine as between spouses (including now as between de facto spouses) has been superseded implicitly by the Family Law Act 1975 (Cth) provisions that govern spousal maintenance rights and obligations both prior and subsequent to separation.60. If these provisions do in fact cover the field in this respect, they necessarily invalidate inconsistent state laws.61. In any event, it has been argued that the doctrine merits abolition on the ground that its premise — a wife's

Page 143 total economic dependence upon her husband — no longer stands and, moreover, that ‘the matters which the doctrine raises as an integral part of its operation are matters which are more appropriately dealt with by the matrimonial courts’.62.

59. Married Persons' Property Act 1986 (ACT) s 5; Married Persons (Equality of Status) Act 1996 (NSW) s 7; Married Persons (Equality of Status) Act 1989 (NT) s 5; Law of Property Act 1936 (SA) s 104. 60. Namely, the Family Law Act 1975 (Cth) ss 72–77A (spouses), 90SE–90SJ (de facto spouses). 61. See I J Hardingham, ‘Husband's Credit for Necessaries’ (1980) 54 ALJ 661 at 673–5. 62. I J Hardingham, ‘Husband's Credit for Necessaries’ (1980) 54 ALJ 661 at 672.

6.14 In any event, the foregoing does not prevent a husband conferring upon his wife express or implied authority to bind him in accordance with the ordinary doctrine of agency. Nor is a wife prevented from conferring parallel authority upon her husband.

Page 144

End of Document

Scope of Actual Authority Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 7: Express Authority > Chapter 7 Express Authority Page 147

Chapter 7 Express Authority [Current to September 2013] Please click on the link below to download the entire chapter. Scope of Actual Authority ‘Express’ and ‘implied’ authority

7.3

Onus of proving authority

7.4

Construction of Express Authority

7.5

Agencies other than powers of attorney

7.5

Powers of attorney

7.7

Interpreting Actual Express Authority

7.12

Authority to ‘find a purchaser’

7.13

Authority to sell or buy

7.19

Limitations on authority

7.21

Authority to be construed in context

7.22

Authority limited by its terms

7.23

Contract to be unconditional

7.25

Contract to contain usual and proper terms

7.26

Exercise of authority to be consistent with the substance of the transaction

7.29

Agent acting for own benefit

7.31

Scope of Actual Authority Please click on the link below to download the entire chapter.

7.1

7.1

Page 2 of 4 Scope of Actual Authority Although an agent must, by definition, be conferred some authority in respect of the principal's affairs,1. it is incorrect to assume that all agents can exercise the same scope of authority.2. The varying definitions of the term ‘agent’ in and of themselves emphasise the point that the scope of an agent's authority is a question of fact to be determined by the terms of the agency agreement and the circumstances of the case. As explained by Lord Halsbury LC in Blackburn, Low & Co v Vigors:3. I cannot but think that the somewhat vague use of the word ‘agent’ leads to confusion. Some agents so far represent the principal that in all respects their acts and intentions and knowledge may truly be said to be the acts, intentions, and knowledge of the principal; other agents may have so limited and narrow an authority both in fact and in the common understanding of their form of employment that it would be quite inaccurate to say that such an agent's knowledge or intentions

Page 148 are the knowledge or intentions of his principal, and whether his acts are the acts of his principal depends upon the specific authority he has received.

So it is never sufficient as a matter of law to simply say that X is agent — one must look further and inquire: ‘X is agent to do what?’4. The terms of the agency, as agreed between principal and agent, dictate the scope of the agent's authority.5. For instance, where a power of attorney specifies conditions or limitations to which the authority conferred by it is to be subject, the donee of the power (being the agent or attorney) must not exercise the authority inconsistently with those conditions or limitations.6.

1.

See 1.4, 4.12.

2.

Kirkpatrick v Kotis (2004) 62 NSWLR 567; [2004] NSWSC 1265; BC200409031 at [85] [89]

3.

(1887) 12 App Cas 531

4.

Netage Pty Ltd v Cantley (1985) 6 IPR 200 at 212–13

5.

Upjohn v Illingworth (1928) 29 SR (NSW) 4 at 7

6.

Powers of Attorney Act 2003 (NSW) s 9(2); Powers of Attorney and Agency Act 1984 (SA) s 5(2); Powers of Attorney Act 2000 (Tas) ss 20, s21, 31(1), 31(2). This in any event reflects the general law. As to powers of attorney see 1.30.

at 537–8

per Campbell J.

. per Young J.

per Street CJ.

7.2 The scope of an agent's authority cannot, in any case, exceed that vested in the principal; otherwise the principal could through the vehicle of agency expand his or her own authority.7. Nor can an agent's authority encompass performance of an illegal act; any authority given for this purpose is void.8. As explained by Cotton LJ in Re Parker9. in the context of statutory illegality: ‘If any Act of Parliament makes anything that is ordinarily done illegal the ordinary authority will not give the agent authority to do it’. Actual authority can also be restricted in its scope by the terms of a statute.10.

7.

Cripps v Lakeview Farm Fresh Ltd (in receivership) [2006] 1 NZLR 238 at [22]

8.

See, for example, Mitchel v Reynolds (1711) 1 P Wms 181; 24 ER 347 unreasonable restraint of trade held void).

per MacKenzie J. (power of attorney constituting an

Page 3 of 4 Scope of Actual Authority 9.

(1882) 21 Ch D 408

at 420

. See also at 418–19 per Brett LJ.

10. See, for example, Powers of Attorney Act 2006 (ACT) s 35, which provides that a principal cannot do the following by an attorney under a power of attorney: (a) authorise the attorney to exercise power in relation to ‘special personal matters’ (as defined in s 36); and (b) authorise the attorney to exercise power in relation to ‘special health care matters’ (as defined in s 37).

‘Express’ and ‘implied’ authority

7.3 ‘Actual authority’ arises where a principal grants, and an agent accepts, authority for the agent to perform specific tasks on behalf of the principal.11. It is therefore consensual, although the manifestation of consent may be express or implied.12. Actual authority is ‘express’ when it is specific authorisation given by express words, whether oral or written, to engage in a particular form of conduct; authority is ‘implied’ when it is inferred from both the conduct of the parties and the circumstances of the case, the latter including the office or position in which the agent is placed.13. Thus, where an agency agreement is in writing, the scope of the actual authority is ascertained by reference to both the express words of the agreement (‘express actual authority’) and any proper implications to be drawn from those words, trade usage and the course of business between the parties (‘implied actual authority’).14. Where the agency agreement is oral, the scope of the agent's authority is to be determined by resort to

Page 149 the purposes of the agency ascertained by reference to the surrounding circumstances and the usual course of the business in which the agent is engaged.15. Expressed another way, ‘[t]he scope of an agent's authority is determined primarily by the nature of the duty entrusted to him’.16. It is the proper characterisation of the agent's duty that assists in interpreting the actual words of the agency agreement and in determining what is to be necessarily implied as within the scope of the agent's authority. The process is therefore one of construction of the actual words of the agency agreement, coupled with the exercise of determining what is implied from those words and from the task or position of the agent. The construction of the actual words is addressed in this chapter, whereas the scope of implied authority is discussed in Chapter 8.

11. Equiticorp Finance Ltd (in liq) v Bank of New Zealand (1993) 32 NSWLR 50 at 132 per Clarke and Cripps JJA; Hendricks v Great Plains Supply Co, 609 NW 2d 486 at 493 (Iowa 2000) (‘Actual authority to act is created when a principal intentionally confers authority on the agent either by writing or through other conduct which, reasonably interpreted, allows the agent to believe that he has the power to act’). 12. Poulet Frais Pty Ltd v Silver Fox Company Pty Ltd (2005) 220 ALR 211; [2005] FCAFC 131; BC200505073 at [124] . 13. Freeman and Lockyer (a firm) v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 LJ; Hely-Hutchinson v Brayhead Ltd [1968] 1 QB 549 Investments Pty Ltd (1986) 82 FLR 269 at 278 Zealand (1993) 32 NSWLR 50 at 132 1 NZLR 608 at [40]

at 583

at 488

per Willmer

per Lord Denning MR; Tsangaris v Gaymark

per Maurice J; Equiticorp Finance Ltd (in liq) v Bank of New

per Clarke and Cripps JJA; Giltrap City Ltd v Commerce Commission [2004]

per Gault P and Tipping J.

14. Freeman and Lockyer (a firm) v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 Diplock LJ; Boulas v Angelopoulos (1991) 5 BPR 11,477 at 11,484; BC9101486 authority of agents see Ch 8.

at 502–3

per

per Kirby P. As to the implied

15. Webster Ltd v Johnson (FC(Tas), 21 May 1992, unreported) BC9200087 at [18] per Zeeman J, with whom Underwood and Slicer JJ concurred.

Page 4 of 4 Scope of Actual Authority 16. Saunders v Leonard (1976) 1 BPR 9409 at 9423

per Holland J. See also Australian Brokerage Ltd v Australian and

New Zealand Banking Corporation Ltd (1934) 52 CLR 430 at 441 McTiernan JJ; BC3490110.

per Starke J, at 450 per Dixon, Evatt and

Onus of proving authority

7.4 The plaintiff bears the onus of establishing both the existence of the agency and the authority of the agent to effect the act giving rise to the entitlement claimed.17. ‘It is not enough that a man should be the agent of another to enable him to make any contract on his behalf; he must make it as his agent’.18. For example, if an agent who is authorised to sign a promissory note makes such a note in payment of his or her own private debt and gives it to his or her own creditor, this is clearly an act not within the agent's authority. In such a case the note is not that of the principal because the person taking it knows that the agent is not acting for the principal.19. Similarly, although the master of a ship or a loading broker is the agent for the shipowner and may sign a bill of lading on behalf of the owner for goods,20. a master or broker who signs a bill of lading for goods not put on board the ship is not acting pursuant to his or her authority and therefore does not act for the owner.21. So in the latter case, although the master or broker has authority to sign bills of lading, a contract so made is not the contract of the shipowner.22. This rule, however, known as the rule in Grant v Norway,23. has been statutorily abrogated in both England24. and 25. Australia.

Page 150

17. Reynell v Lewis (1846) 15 M & W 517 at 526; 153 ER 954 at 958 per Pollock CB; Lysaght Bros & Co Ltd v Falk (1905) 2 CLR 421 at 427 per Griffith CJ; Geissler v Accro Motors Pty Ltd (1956) 73 WN (NSW) 31 at 33 (FC). As to the onus of proving an agency relationship see 1.10. 18. Lysaght Bros & Co Ltd v Falk (1905) 2 CLR 421 at 429

per Griffith CJ.

19. As to this knowledge see 20.39–20.49. 20. Manchester Trust v Furness [1895] 2 QB 539 Ltd [1950] 1 All ER 1033 at 1040–1

at 543

per Devlin J.

21. Heskell v Continental Express Ltd [1950] 1 All ER 1033 at 1040–2 22. Grant v Norway (1851) 10 CB 665; 138 ER 263 23. (1851) 10 CB 665; 138 ER 263

per Lindley LJ; Heskell v Continental Express

per Devlin J.

.

.

24. Carriage of Goods by Sea Act 1992 (UK) s 4 (which provides that the master of a ship, or a person with the express, implied or apparent authority of the carrier to sign bills of lading, can sign such a bill, which will then be conclusive evidence of the shipment or receipt of the goods in favour of the lawful holder of the bill). 25. Carriage of Goods by Sea Act 1991 (Cth) Sch 1 Art 3 r 4; Sea-Carriage Documents Act 1997 (NSW) s 12; SeaCarriage Documents Act 1998 (NT) s 12; Sea-Carriage Documents Act 1996 (Qld) s 10; Sea-Carriage Documents Act 1998 (SA) s 11; Sea-Carriage Documents Act 1997 (Tas) s 11; Sea-Carriage Documents Act 1998 (Vic) s 12; SeaCarriage Documents Act 1997 (WA) s 12. Equivalent legislation has been recommended but not yet enacted in the Australian Capital Territory.

End of Document

Construction of Express Authority Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 7: Express Authority > Chapter 7 Express Authority

Construction of Express Authority Please click on the link below to download the entire chapter.

Agencies other than powers of attorney

7.5 The scope of an actual authority conferred on an agent is to be interpreted in line with the ordinary meaning of its terms. As with contractual interpretation generally,26. those terms construed in their context, taking into account the object of the authority conferred, determine that scope. Like commercial documents in the main, the meaning of agency agreements is to be determined objectively, that is, according to what a reasonable person in the position of the parties would have understood the agreement to mean.27. Consistent with the foregoing, an authority that is ambiguous is to be construed according to any course of trade in such matters.28. The same is the case of the authorities expressed in general terms, which will be ‘construed liberally … according to the usual course of dealing in such matters’,29. entitling the agent to interpret the authority ‘in a reasonable way in the exercise of a reasonable discretion’.30. The Restatement puts it the following way:31. An agent's interpretation of the principal's manifestations is reasonable if it reflects any meaning known by the agent to be ascribed by the principal and, in the absence of any meaning known to the agent, as a reasonable person in the agent's position would interpret the manifestations in light of the context, including circumstances of which the agent has notice and the agent's fiduciary duty to the principal. An agent's understanding of the principal's objectives is reasonable if it accords with the principal's manifestations and the inferences that a reasonable person in the agent's position would draw from the circumstances creating the agency.

Factors relevant to the reasonableness of an agent's understanding include the fiduciary character of the principal– agent relationship — such that an agent must not, except pursuant to clear authority, breach the ‘no-conflict’ and ‘no-profit’ rules32. — and any prior dealings between them that reasonably inform the scope of the present authority. Also, the principal may be presumed to accept a market usage not inconsistent with the terms of the agency.33. An authority will therefore be interpreted to permit action that an agent holding that position would, in line with ordinary commercial expectations and usage, be entitled to perform on the principal's behalf,34. subject to any contrary provision in the agency agreement or express oral restriction imposed by the principal.35.

26. This should not be interpreted to mean that all agencies are contracts: see 4.14–4.20. 27. Powercor Australia Ltd v Pacific Power [1999] VSC 110; BC9907547 at [1221] BNP Paribas (2004) 218 CLR 451; [2004] HCA 35; BC200404838 at [22] Pty Ltd (2004) 219 CLR 165; [2004] HCA 52; BC200407463 at [40] BCL 310; [2006] NTSC 26; BC200601666 at [26]

per Gillard J; Pacific Carriers Ltd v

(FC); Toll (FGCT) Pty Ltd v Alphapharm

(FC); Hazanee Pty Ltd v Elders Ltd (2006) 22

per Olsson AJ.

28. Pole v Leask (1860) 28 Beav 562 at 574; 54 ER 481 at 486 .

per Romilly MR (affd Pole v Leask (1863) 8 LT 645)

Page 2 of 6 Construction of Express Authority 29. Pole v Leask (1860) 28 Beav 562 at 574; 54 ER 481 at 486 . 30. Donaldson v Noble (1888) 14 VLR 1021 at 1035

per Romilly MR (affd Pole v Leask (1863) 8 LT 645)

per Higinbotham CJ. See also at 1037.

31. Restatement (3d) §2.02(2), 2.02(3). 32. As to these rules see 10.6–10.8. 33. See 8.14–8.17. 34. Bonette v Woolworths Ltd (1937) 37 SR (NSW) 142 at 150 35. Knowles v Southern Railway Co [1936] 2 KB 330

per Jordan CJ.

; Bonette v Woolworths Ltd (1937) 37 SR (NSW) 142 at 150

(per Jordan CJ. However, a third party dealing with the agent who does not know of the restriction is not bound by it if the position that the principal has held out the agent to occupy ordinarily carries that authority. In such a case, the principal is bound by the agent's ostensible authority: see Ch 20.

7.6 Where there is ambiguity in the wording of the agent's authority and the agent is unable to contact the principal to clarify its meaning, if the agent acting bona fide adopts a reasonable interpretation of those words, the agent is not liable to the principal for acting inconsistently with his or her authority if it transpires that the agent has acted in a manner not intended by the principal.36. Yet in view of modern means of communication, the scope for any such absolution nowadays must necessarily be limited.37.

Page 151

36. See 19.17. 37. See 19.18.

Powers of attorney

7.7 In so far as a power of attorney confers authority on the donee as agent of the donor, it operates merely as an authority to act and not as a direction to act. Courts have traditionally required powers of attorney to be strictly construed as giving only the authority to be found within the four corners of the instrument, whether in express terms or by necessary implication.38. This strict approach has been justified on the basis that ‘the rights of other persons may be affected’.39. Why this should justify an approach stricter than that applicable in other agencies is somewhat unclear given that agency is underscored by representation of a principal to third parties.40. Also, the notion of protecting the principal, which underlies the strict construction approach, is at odds with the prevailing judicial approach to ostensible authority,41. based as it is in the protection of third parties.42. It must, moreover, be queried why powers of attorney merit a strict construction, even in the commercial sphere, given that the ordinary approach to interpreting deeds is that they are construed against the grantor.43.

38. Attwood v Munnings (1827) 7 B & C; 108 ER 727; Re Baxter (1863) 1 QSCR 99

; Hort v Nicholson (1865) 2 WW &

A’B (L) 183; Oppenheimer v Oppenheimer (1872) 3 AJR 60; Magor v Donald (1887) 13 VLR 255

; Bryant, Powis &

Page 3 of 6 Construction of Express Authority Bryant v La Banque du Peuple [1893] AC 170 VLR 442

at 177

(PC); Fiedler v South Mount Lyell Mining Co (1899) 25 per Richardson J (CA); Sweeney v Howard (2007) 13

; Parkin v Williams [1986] 1 NZLR 294 at 299

BPR 24,381; [2007] NSWSC 852; BC200706435 at [54]

per Windeyer J; Re Estate of Dudley (deceased) (2013)

115 SASR 328; [2013] SASC 22; BC201309027 at [18], [19] [6.25]–[6.69]. 39. Re Dowson's and Jenkins's Contract [1904] 2 Ch 219

at 223

per Gray J. See further Dal Pont, Powers of Attorney, per Vaughan Williams LJ.

40. See 1.4. 41. Bowstead, p 122. 42. See 20.1–20.4. 43. Stoljar, pp 91–2.

7.8 Yet the strict construction approach appears well established44. and perhaps can be justified as a means of ensuring attorneys are not tempted or permitted to go outside the purpose of their authority. So the scope of any general powers conferred will be interpreted and limited in the light of the special powers conferred and in accordance with what is necessary for the proper execution of those special powers.45. Such general words will be construed so as to enlarge the special powers ‘when necessary, and only when necessary, for the accomplishment of the purpose for which the authority is given’.46. Ambiguity in this respect can be resolved by reference to any recitals, the reasons for the power evidenced by the recitals controlling the breadth of the general powers.47. In Queensland this strict approach is ousted by statute in the case of enduring powers of attorney in that, to the extent that an enduring power does not state otherwise, an attorney is taken to have the maximum power that could be given to the attorney by that document.48.

Page 152

44. In fact, in Re Hoarey [1906] VLR 437 at 444 hardened into a rule of law’.

Cussen J remarked that this rule of construction ‘has almost if not quite

45. Perry v Holl (1860) 2 De GF & J 38 at 48; 45 ER 536 at 540 per Lord Campbell CJ; Re Hoarey [1906] VLR 437 at 444 per Cussen J. 46. Re Hoarey [1906] VLR 437 at 444 Harper v Godsell (1870) LR 5 QB 422

per Cussen J. See also Attwood v Munnings (1827) 7 B & C; 108 ER 727; ; Lewis v Ramsdale (1886) 55 LT 179.

47. Rooke v Lord Kensington (1856) 2 K & J 753 at 769 ; 69 ER 986 at 992–3 per Sir W Page Wood VC; Danby v Coutts & Co (1885) 29 Ch D 500 at 514–15 per Kay J (where the operative part of a power of attorney did not prescribe its duration, but the recitals to the deed expressed its purpose as being that the principal should have an agent whilst he was abroad. It was therefore held that the agent's authority was limited to the period of the principal's absence from the jurisdiction). See further Dal Pont, Powers of Attorney,[6.18]–[6.21]. 48. Powers of Attorney Act 1998 (Qld) s 77. The section itself gives the example of an enduring power that simply appoints an attorney, in which case the donee is taken to have power over all financial and personal matters. It is under s 32(1)(a) that the breadth of the power that may be conferred is specified; it states that by an enduring power of attorney a principal may ‘authorise 1 or more other persons who are eligible attorneys (attorneys) to do anything in relation to 1 or more financial matters or personal matters for the principal that the principal could lawfully do by an attorney if the adult had capacity for the matter when the power is exercised’. To this end, ‘s 77 does no more than ensure that an enduring power of attorney will be as wide as s 32(1)(a) would allow in the absence of terms within the power restricting its scope’: Orix Australia Corporation Ltd v McCormick (2005) 145 FCR 244; [2005] FCA 1032; BC200505464 at [76]

per Graham J.

Page 4 of 6 Construction of Express Authority

7.9 Jacobs v Morris49. illustrates the curial approach. The principal appointed an agent under a power of attorney ‘to purchase and to make any contract for the purchase of any goods in connection with the business carried on by me’, to make the purchase either for cash or on credit, and ‘where necessary in connection with any purchase made on my behalf as aforesaid’ to make, draw, sign, accept or endorse any bills of exchange or promissory notes that should be requisite or proper in the premises. Purporting to act under the power of attorney, the agent obtained a loan of £4000, which he applied to his own use. The English Court of Appeal read the references to credit, bills of exchange and promissory notes in the context of the agent's authority to purchase and concluded that that authority did not authorise the agent to borrow.50. Another illustration is found in Re Dowson's and Jenkins's Contract,51. where the attorney was expressly authorised to sell any property belonging to the principal and to receive and give a discharge for any money owing to the principal by virtue of any security. It was held that this did not authorise the agent to sell property held by the principal as mortgagee.52. Cozens-Hardy LJ remarked:53. [A] mere power of attorney enabling an attorney to sue for, recover, and receive money due on a mortgage is not in itself a power to do more than receive the money and execute the necessary transfer, and does not authorise the attorney to sell, not merely the mortgagee's interest in the property, but also the property freed from all right or equity of redemption on the part of the mortgagor.

49. [1902] 1 Ch 816

.

50. Jacobs v Morris [1902] 1 Ch 816 Hardy LJ. 51. [1904] 2 Ch 219

at 828–9

per Vaughan Williams LJ, at 833 per Stirling LJ, at 834 per Cozens-

.

52. Re Dowson's and Jenkins's Contract [1904] 2 Ch 219 at 225 per Cozens-Hardy LJ.

at 223–4

53. Re Dowson's and Jenkins's Contract [1904] 2 Ch 219

at 225

per Vaughan Williams LJ, at 224 per Romer LJ, .

7.10 The rules as to the construction of an attorney's authority are therefore stricter than those applicable in the ordinary case of agency,54. though in both contexts the agent or attorney can appoint others to perform merely ministerial acts,55. and incidental powers may be implied. For example, it has been held that a power of attorney empowering the attorney ‘to sell and part … of the appropriated assets … on such terms and conditions in all respects as the said attorney shall think fit’ includes an implied authority to receive purchase moneys.56.

54. See 7.5, 7.6. 55. Parkin v Williams [1986] 1 NZLR 294 at 299 appointed by agents see 9.19–9.22. 56. R v Registrar of Titles (1921) 27 ALR 236 at 238

per Richardson J (CA). As to ministerial acts performed by persons

per Schutt J.

Page 5 of 6 Construction of Express Authority

7.11 Unless the words of the power admit to no other construction, the court will not interpret a power as conferring on the donee the implied authority to act in his or her own interests to the exclusion of those of the donor,57. for this outcome is ordinarily inconsistent with the purpose of attorneyship.58. In Reckitt v Barnett, Pembroke and Slater Ltd,59. for example, the attorney was empowered to manage the affairs of the appellant whilst the latter was abroad, and could sign and execute all documents that might be necessary as the attorney might think fit for

Page 153 this purpose.The terms of the power did not expressly authorise the attorney to draw cheques. Upon a question raised on this point by the appellant's bankers, the appellant instructed the bankers that the attorneyship should cover the drawing of cheques upon the bank by the attorney ‘without restriction’. The attorney then drew a cheque payable to the respondents that was to the latters' knowledge in payment of the attorney's own debt, notwithstanding that it was signed as the appellant's attorney. The appellant, upon discovering this, sued the respondents to recover the amount of the cheque. The House of Lords held that the attorney had acted outside his authority in drawing that cheque even though the terms of that authority, in so far as cheques were concerned, were ‘without restriction’. The reasons for this conclusion were well explained by Viscount Sumner:60. Assuming that the express power to draw carries with it an implied power to issue cheques, when drawn, still what is unrestricted is only the drawing of cheques and the subsequent issue must be subject, as the general power itself is, to the exercise of the power being for the purposes of the principal. It is unreasonable so to interpret the words that, although he can only use the power of attorney for the principal's benefit, he can under the letter, by drawing enough cheques on the appellant's account, transfer all the principal's property into his own pocket or apply it to his own use. We know that in fact nothing of this sort could have been meant by the parties to the power, for such self-sacrificing trust would be beyond the limits even of romance and it would be wrong to attach to words, which at most are ambiguous, a meaning which bears no relation to the realities of life.

As the drawing of the cheque in question by the attorney was, to the knowledge of the respondents, not an act authorised by the terms, they could not rely on any ostensible authority of the attorney to defend the action by the appellant.61.

57. This principle is given statutory effect in the Australian Capital Territory and New South Wales, where legislation provides that a power of attorney confers no authority to do any act by which a benefit would be conferred on the donee, except as expressly permitted by its terms: Powers of Attorney Act 2006 (ACT) s 34; Powers of Attorney Act 2003 (NSW) s 12(1) (see Orr v Slender (2005) 64 NSWLR 671; [2005]NSWSC 1175; BC200510063 (where Nicholas J, dealing with the previous equivalent New South Wales provision, namely Conveyancing Act 1919 (NSW) s 163B(2)(b), remarked that the words of the provision make clear that it is necessary that there be, or would be, a direct link between the exercise of power and the benefit conferred or, in other words, that the relevant act of the attorney is, or would be, the effective cause of the benefit being conferred on him (at [29]), adding that ‘if the legislature had intended that the enquiry must include consideration whether a benefit would be conferred as an indirect result of the attorney's act, an exercise likely to be speculative and uncertain, it would have chosen unambiguous language to effect such intention’: at [31])). 58. It is also inconsistent with fiduciary duties imposed on donees of powers of attorneys: see 10.10. 59. [1929] AC 176

.

60. Reckitt v Barnett, Pembroke and Slater Ltd [1929] AC 176 Midland Bank Ltd v Reckitt [1933] AC 1

at 15

[2007] NSWSC 852; BC200706435 at [55] [58]

at 189

. See also at 184–5 per Viscount Dunedin;

per Lord Atkin; Sweeney v Howard (2007) 13 BPR 24,381; per Windeyer J.

Page 6 of 6 Construction of Express Authority 61. On the point of notice in a third party of an agent's lack of authority denying reliance on ostensible authority, see 20.39– 20.47.

End of Document

Interpreting Actual Express Authority Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 7: Express Authority > Chapter 7 Express Authority

Interpreting Actual Express Authority Please click on the link below to download the entire chapter.

7.12 As a general rule, the express terms of an agent's authority are to be interpreted in their context, within the agency agreement itself and also in the circumstances in which the agreement operates.62. The express terms attract their natural meaning unless the context dictates otherwise. Agency agreements pursuant to which the agent has been engaged to sell, or to find a purchaser for, the principal's property illustrate the courts' approach to interpreting express authority.

62. Ashford Shire Council v Dependable Motors Pty Ltd [1961] AC 336

at 349

(PC).

Authority to ‘find a purchaser’

7.13 Where an agent is authorised by a vendor to ‘find a purchaser’ for the vendor's property, courts have interpreted this as no more than an authority for an agent to introduce buyers to the principal and an entitlement to a remuneration in the form of commission should the agent introduce a buyer who purchases the property. So an agent in carrying out the agency may advertise, and make representations in respect of, the property and complete the salient

Page 154 details of a contract of sale.63. This authority does not, however, include an authority to sell the property. As explained by Field J in Saunders v Dence:64. [I]f you go to an estate agent, and tell him you have a property to sell, and that you want a purchaser, and you tell him what you have made up your mind shall be the price, and to a certain extent what shall be the conditions, and you instruct him to try and find a purchaser, that is not sufficient, under those circumstances, to authorise the agent to make a contract without any conditions whatever with regard to the title.

Nor does an agent's authority to make representations as to the principal's property encompass authority to make representations as to how the principal would respond to dealings in relation to the transaction in question.65.

Page 2 of 15 Interpreting Actual Express Authority 63. Lavery v Nelson (1984) 3 BPR 9211 at 9212 Business Agents Act 2002 (NSW) s 64(1).

per Powell J; Agents Act 2003 (ACT) s 89B(1); Property, Stock and

64. (1885) 52 LT 644 at 646, citing Hamer v Sharp (1874) LR 19 Eq 108

as authority for this proposition. See also

Howell v Owen (1882) 16 SALR 140 at 145 per Way CJ (‘I am in very considerable doubt indeed if the authority — the simple, bare authority — to obtain a buyer … authorised the agent to enter into a written contract with respect to the sale of the land, and I should not be prepared without consideration to hold that it was conferred upon him’); Rosenbaum v Belson [1900] 2 Ch 267 at 270 per Buckley J; Keen v Mear [1920] 2 Ch 574 ; Shortal v Buchanan [1920] NZLR 103 at 106 Irons [1958] VR 436 at 441

per Sim J; Boyd v O'Connor [1923] VLR 603 at 606

per Mann J; Lee v

per Pape J.

65. See, for example, Fairmede Pty Ltd v Von Pein [2004] ANZ ConvR 382; [2004] QSC 220; BC200404842 at [122] per Mullins J (who held that a defendant engaged to find a purchaser for the vendors' land lacked implied authority ‘to make representations to the purchaser about how the vendors would respond to requests for extensions of time under the contract or a request to modify the requirements for satisfying any obligation under the contract’).

7.14 As the making of a contract for the principal (vendor) is no part of the ordinary business of an agent engaged by the vendor to find a purchaser, such an agent does not ordinarily have implied (or for that matter ostensible)66. authority to conclude a contract on behalf of a vendor.67. Any such authority cannot stem from vague and ambiguous language; the language must be clear.68. Cited as the rationale for this is the peculiar nature of a transfer of real estate; it is usually transferred only after a strict investigation and strict proof of title is offered, and in common knowledge that it is unusual for a vendor to contract without embodying therein for his or her own protection defensive conditions relating to the investigation and proof of his or her title. In the words of a South Australian judge in the late nineteenth century, ‘it is necessary that principals should be protected from the ruinous costs which might be incurred, unless the state of the title was considered and provided for before the contract was signed’.69. For example, in Williams & Co Pty Ltd v Bond70. an intending vendor of property agreed to ‘grant to the agent an agency of the said property for sixty days’. O'Bryan J held that under this agreement the agent had no authority to enter into a binding contract on behalf of its principal even if it found a purchaser ready and willing to pay the price and on the terms set out in the agency agreement.71. His Honour added that the grant of authority in those terms meant no more than a promise to give the agent the opportunity of introducing buyers to the principal within that period — not an authority to the agent to sell the property on behalf of the principal or an authority to enter on the principal's behalf into a binding contract to sell.72. Therefore, authorising an agent to find a purchaser means to find a person willing to become a purchaser, not to find such a person and also make him or her a purchaser.73.

Page 155

66. Hill v Harris [1965] 2 QB 601

at 616

per Diplock LJ. As to the doctrine of ostensible authority see Ch 20.

67. Colbron v St Bees Island Pty Ltd (1995) 56 FCR 303 at 313; BC9507598 68. Wragg v Lovett [1948] 2 All ER 968 at 969

per Lord Greene MR.

69. Howell v Owen (1882) 16 SALR 140 at 145 70. [1965] VR 610

per Way CJ.

.

71. Williams & Co Pty Ltd v Bond [1965] VR 610 at 612

.

72. Williams & Co Pty Ltd v Bond [1965] VR 610 at 613

.

73. Rosenbaum v Belson [1900] 2 Ch 267

at 270

per Buckley J.

per Lindgren J.

Page 3 of 15 Interpreting Actual Express Authority

7.15 Yet as the law distinguishes between making a contract and exchanging parts of a contract signed by the vendor or purchaser, as the case may be, it is open to a court to conclude that, in the circumstances of a particular case, an estate agent may have (implied) authority to participate in the exchange of contracts.74.

74. See, for example, Paterson v Clarke (2002) 11 BPR 20,781; [2002] NSWSC 1206; BC200207710 at [20] [30] Young CJ in Eq (affd Clarke v Paterson (2003) 11 BPR 20,781; [2003]NSWCA 160; BC200303763 Parton [2004] ACTSC 94; BC9501915

BC200406406

per

); Fricker v

. Cf Harris v Fuseoak Pty Ltd (1995) 7 BPR 14,511 at 14,521;

;

per Allen J (who, in a passage approved by Barrett J in Golding v Vella (2001) 10 BPR 18,919; [2001]

NSWSC 567; BC200103694 at [50] , was scathing of the practice of estate agents exchanging contracts). Specific statutory provision is now made in the Australian Capital Territory and New South Wales under which estate agents are permitted to take part in the exchange of contracts: Agents Act 2003 (ACT) s 89B(1)(c) (but see s 89B(4)); Property, Stock and Business Agents Act 2002 (NSW) s 64(2), 64(3).

7.16 Other examples of authorities that have been held not to confer an authority to sell include: authority to an estate agent to procure a purchaser and to negotiate a sale;75. authority to find a person willing to enter into a contract with the principal;76. instructions to an estate agent to place a property on its books as for sale, the agent at the time being informed as to the lowest price that would be accepted;77. and an advertisement informing persons who might be desirous of purchasing the principal's property that applications ‘to treat and view’ were to be made to the principal's agent.78.

75. Chadburn v Moore (1892) 67 LT 257. 76. Lee v Irons [1958] VR 436 at 441

per Pape J.

77. Prior v Moore (1877) 3 TLR 624. 78. Goodwin v Brind (1868) LR 5 CP 299

.

7.17 The same strict approach to construction is justified in the case of an authority to an agent to find a tenant for the principal's premises, especially premises to which goodwill attaches. For example, in Quirk v Winter79. the vendor (the defendant) wrote the following to a land agent regarding the sale of his hotel: ‘Re sale of hotel: I will take £2,500 for the freehold … or will lease for a term of five years, rent five pounds per week£1,000 walk in walk out’. The agent submitted the property to the plaintiff who elected to take a lease, the agent signing the lease on behalf of the defendant. Sim J held that the agent lacked authority to sign the lease, explaining the matter as follows:80. Where the property to be leased is only a dwellinghouse the owner usually desires to know something about the proposed tenant before he agrees to accept him, and the authority must be clear in its terms before it can be treated as giving the agent carte blanche with regard to the selection of a tenant. In the case of a hotel the object of the owner is to secure a

Page 4 of 15 Interpreting Actual Express Authority tenant who is likely to be able to carry on the business successfully without taking any unwise risks in connection with the penal provisions of the Licensing Acts. Where in such a case an agent claims to have been authorised to select a tenant the proof of his authority must be very clear indeed.

According to his Honour, the authority conferred on the agent amounted to nothing more than an authority to find a person willing to negotiate for a lease on the terms specified in the letter.81.

79. [1920] NZLR 98

.

80. Quirk v Winter [1920] NZLR 98 at 101

.

81. Quirk v Winter [1920] NZLR 98 at 102

.

7.18 There is less justification for a strict approach to construction where the authority relates to the sale of the principal's goods, as opposed to real estate. The considerations that justify the strict approach in the case of real estate apply with far less force in the case of goods. One Australian judge has gone so far as to say that the cases dealing with authorities to find a purchaser for real estate ‘form a general exception to the ordinary rules regulating the construction and extent of written authorities given to agents in respect of goods and merchandise’.82. Where a principal places his or her goods in the possession of an agent for the purposes of sale, ordinary commercial practice dictates that the agent is authorised to sell those goods unless the terms of the authority expressly provide to the contrary. This practice is

Page 156 reflected in both the case law dealing with mercantile agents,83. who are impliedly authorised to sell the goods in their own name,84. and also the factors legislation.85. To this end, it has been said that:86. … the appointment of a person as an agent for sale confers upon him an authority, in the absence of special instructions to the contrary, to sell the goods entrusted to him in such manner and at such times as in the exercise of sound discretion he thinks best for his principal. The authority, so conferred is, however, revocable by the principal, and the agent is bound to obey his principal's orders in respect of the sale of the goods.

For example, in Clements v Hoppo87. the owner of a racehorse and foal wrote to an agent stating that he placed the horse and foal in the agent's hands ‘for sale’, with ‘a reserve’ of £70. Cleland J construed the words ‘I place my horses in your hands for sale’ as conferring an authority ‘to sell’, which meant that the agent had authority to make, within the limits of that authority, a concluded ‘open’ or unconditional contract of sale.88. In making such a contract, the agent was therefore acting within the scope of his authority.89. His Honour did, however, note that the agent's authority was expressly limited as to price, and so the agent could not lawfully, for instance, make terms or give a warranty. The agent's authority was merely to sell at a price of£70 cash or more if he could get it.90.

82. Clements v Hoppo [1937] SASR 231 at 234

per Cleland J.

83. See 1.23–1.25, 21.1–21.6. 84. Baring v Corrie (1818) 2 B & Ald 137 at 143; 106 ER 317 at 319 per Abbott CJ; Re Henley (1876) 4 Ch D 133 85. See 21.20–21.36.

.

Page 5 of 15 Interpreting Actual Express Authority 86. Re M (a debtor) (1909) 10 SR (NSW) 175 at 178 152; Osborne v Synnot (1877) 3 VLR (L) 148 87. [1937] SASR 231

per Street J. See also Smart v Sandars (1846) 3 CB 380; 136 ER

.

.

88. Clements v Hoppo [1937] SASR 231 at 234 .Cf Prior v Moore (1877) 3 TLR 624 (where, on similar facts but involving real estate, Kekewich J held that the agent was not authorised to contract). 89. Clements v Hoppo [1937] SASR 231 at 235

.

90. Clements v Hoppo [1937] SASR 231 at 234

.

Authority to sell or buy

7.19 Where an authority to an agent in respect of the principal's real estate can be clearly construed as authorising the agent to effect a sale of the property in question, the agent is authorised to sign a contract for the sale of the property on behalf of the vendor. Estate agents conferred with authority of this kind are more akin to the ‘true’ agents, namely persons who can contract and so create legal relations for their principal. Thus an agent who is invested with a clear and definite authority to sell at a specified price has authority to enter into, and to sign on his or her principal's behalf, a binding contract, in proper form, and in proper terms, to sell at that price.91. In the words of Buckley J, ‘[a]uthorizing a man to sell means an authority to conclude a sale’.92. The same principles apply where an agent is expressly authorised to purchase property for the principal.

91. Rosenbaum v Belson [1900] 2 Ch 267 Mear [1920] 2 Ch 574

; Baker v Taylor (1906) 6 SR (NSW) 500 at 504

; Boyd v O'Connor [1923] VLR 603 at 606–8

92. Rosenbaum v Belson [1900] 2 Ch 267

at 270

per Street J; Keen v

per Mann J.

.

7.20 A leading case is Rosenbaum v Belson,93. which involved the following written authority to an agent: ‘Please sell for me my houses, and I agree to pay to you a commission on the purchase price accepted’. It was argued that this did not authorise the agent to enter into a contract, and that an agent for sale has no authority to sign a contract unless express authority to sign it, as distinguished from authority to sell, was proved. Buckley J rejected this argument, reasoning as follows:94. The authority in the present case … is an authority to sell. A sale prima facie means a sale effectual in point of law, including the execution of a contract where the law requires a contract in writing. I do not find anything in the circumstances of this case which induces me to say that

Page 157 the word ‘sell’ here means any less than this … I have been unable to find any case in which it has been held that instructions given by AB to sell for him his house and an agreement to pay so much on the purchase price accepted are not an authority to make a binding contract including an authority to sign an agreement. If a power of attorney were given to AB to sell an estate, he would, in my opinion, be entitled, in the absence of anything narrowing the meaning of the word ‘sell’, not only to negotiate for but to sign an agreement for sale; and that would give the word ‘sell’ its full meaning — namely, to

Page 6 of 15 Interpreting Actual Express Authority conclude a binding agreement for sale.

The Supreme Court of Western Australia in Rhodes Pty Ltd v Galati95. held likewise, Virtue J remarking that an authority to sell property for a certain amount empowers the agent to sign a binding contract ‘because I cannot see how an authority to sell a particular property at a particular price to a particular person could otherwise be in any way effectual’.

93. [1900] 2 Ch 267

.

94. Rosenbaum v Belson [1900] 2 Ch 267 95. [1961] WAR 180 at 184

at 269

, 271

.

.

Limitations on authority

7.21 Several important limitations applicable to what appears an express clear authority to sell are discussed below. In this regard, what must be kept in mind is that ‘the employment of an agent to sell or negotiate a sale does not authorise the agent to do more than what is generally considered to be in the ordinary course of the business of an agent in selling the kind of property in question for a principal and what is reasonably incidental thereto’.96. Each of these limitations reflects the nature of the agency relationship, specifically the agent's duty to foster the principal's interests in the transaction. Though much of the case law in this context stems from the relationship between a real estate agent and a vendor of property, the limitations discussed are not so circumscribed in their application. In particular, the construction of an agent's authority in its context, its limitation by its own terms, the exercise of authority consistently with the substance of the transaction to be effected for the principal, and the proscription against the agent using the authority for personal benefit, are limitations on authority that apply in respect of all agents.

96. Saunders v Leonardi (1976) 1 BPR 9409 at 9423 Ltd [1971] 2 NSWLR 471 at 485

per Holland J, citing as authority Presser v Caldwell Estates Pty

per Asprey J.

Authority to be construed in context

7.22 A clause that ostensibly confers the authority to sell cannot be construed in isolation, but in the context of the terms of the instrument as a whole. This amounts to no more than the application of a basic principle of contractual interpretation: in order to properly ascertain the meaning of contractual terms, such terms must be construed within the context of the contract as a whole. Street J explained this in Baker v Taylor:97. The use of the word ‘sell’ standing alone and unqualified by any context would no doubt be sufficient evidence of authority to conclude a sale, but I do not think that the use of this word is conclusive if upon a view of the whole of the facts from which the agency is sought to be deduced the court can see that the word ‘sell’ as used by the parties meant less than an authority to conclude a sale.

Page 7 of 15 Interpreting Actual Express Authority An example is Boyd v O'Connor,98. where the terms of the authority contained the following statement by the vendors: ‘We … hereby agree to sell the property …’. Mann J noted that these words, when taken in isolation, suggest an authority to effect a contract of sale. However, a further perusal of the document in question with a consideration of the fact that the parties were an intending vendor on the one hand and a real estate agent on the other, coupled with the fact that the document was drawn up between the agent and the vendor in the course of negotiations in the direction of finding a purchaser, led his Honour to conclude that the authority was not an authority to sell.99.

Page 158 A further example, though in a different context, is Powell v Bickford,100. where it was argued that an estate agent had acted outside the scope of his authority by accepting the deposit by cheque where the contract required payment ‘in cash’. Lavan J, however, considered that the term ‘cash’, in the context of an agreement to purchase real estate where a vendor can ensure the cheque is cleared prior to settlement, means no more than that the transaction is to be a ‘cash’ as opposed to a ‘terms’ dealing.101. The same cannot necessarily be said where the principal's property passes contemporaneously with such payment by cheque, in which case an authority to receive payment ‘in cash’ is an important safeguard for the vendor.102.

97. (1906) 6 SR (NSW) 500 at 505 98. [1923] VLR 603

.

.

99. Boyd v O'Connor [1923] VLR 603 at 607

.

100.[1969] WAR 195 . See also Blocksidge and Ferguson Ltd v Campbell [1947] St R Qd 22 at 25 per Douglas J (FC) (who noted that a general employment to sell for cash does not encompass a sale by way of exchange). 101.Powell v Bickford [1969] WAR 195 at 200

.

102.Powell v Bickford [1969] WAR 195 at 201

.See further 8.10, 8.11.

Authority limited by its terms

7.23 An express authority conferred on an agent to sell the principal's property, even if unqualified, cannot be construed as including any authority to pledge that property as security for a loan.103. The reason is that a pledge is essentially different from a sale, the distinction being well expressed in the following extract from the judgment of Lord Selborne in City Bank v Barrow:104. It is manifest that when a man is dealing with other people's goods, the difference between an authority to sell, and an authority to mortgage or pledge, is one which may go to the root of all the motives and purposes of the transaction.The object of a person who has goods to sell is to turn them into money, but when those goods are deposited by way of security for money borrowed it is a transaction of a totally different character. If the owner of the goods does not get the money, his object and purpose are simply defeated; and if on the other hand, he does get the money, a different object and different purpose are substituted for the first, namely that of borrowing money and contracting the relation of debtor with a creditor, while retaining a redeemable title to the goods, instead of exchanging the title to the goods for a title, unaccompanied by any indebtedness, to their full equivalent in money.

For example, in Tobin v Broadbent105. the High Court rejected a broker's argument that his power of attorney to sell authorised him to borrow on his own account on the security of a client's shares. Even if the pledge is for a loan to the principal, the result is the same, because the agent lacks the authority to do so.

Page 8 of 15 Interpreting Actual Express Authority

103.Tobin v Broadbent (1947) 75 CLR 378 at 391; BC4700530 per Latham CJ. The ramifications of such a distinction in the context of factors led the legislature to enact the factors legislation: see 21.20. 104.(1880) 5 App Cas 664

at 670

.

105.(1947) 75 CLR 378 at 391 per Latham CJ, at 401 per Dixon J; BC4700530. The court also rejected the argument that such an authority could be conferred by custom.

7.24 Nor does an authority to sell carry with it the authority, whether actual or ostensible, to secure finance for the prospective purchaser.106. This has been explained on the ground that the procurement of finance for purchasers is not traditionally part of the ordinary course of business of an agent engaged to sell.107. Yet even if it is part of that business (and in recent times it is not uncommon for estate agents to arrange finance for prospective purchasers), this does not of itself mean that it is part of the agent's authority from the vendor.It would only be so in the face of clear evidence of custom to that effect as to justify contractual implication on the grounds of custom into the agency agreement, coupled with the absence in that agreement of anything inconsistent with the custom.

Page 159 Lacking this, the purchaser cannot visit upon the vendor the consequences of any acts effected by the agent in the course of securing that finance.108. Saunders v Leonardi109. provides an illustration. There the agent of the vendor on occasion acted as a procurer of finance for intending purchasers and on the occasion in issue innocently misrepresented to the purchaser that finance had been procured. This misrepresentation induced the purchaser to enter into an unconditional contract with the vendor. Without finance, the purchaser could not complete and forfeited the deposit to the vendor. The Supreme Court of New South Wales denied the claim of the purchaser to recover the deposit from the vendor on the ground that the vendor had not authorised the agent to find finance for the purchaser. Holland J held that in carrying out this task, the agent was acting as agent for the purchaser solely and so the proper defendant was the agent, not the vendor.110.

106.Saunders v Leonardi (1976) 1 BPR 9409 at 9423

per Holland J.

107.Saunders v Leonardi (1976) 1 BPR 9409 at 9423

per Holland J.

108.It is conceivable that the principal (vendor) could be so liable if the agent has ostensible authority to arrange finance. However, it is unlikely that a vendor could properly be seen as ‘holding out’ the agent as having authority from the vendor to arrange finance for the purchaser. It is more likely that the agent will arrange finance as a service to the purchaser, and so be acting as the purchaser's agent for that purpose. 109.(1976) 1 BPR 9409

.

110.Saunders v Leonardi (1976) 1 BPR 9409 at 9421

.

Contract to be unconditional

7.25 If an agent is definitely instructed to sell at a certain price, those instructions involve authority to make a binding contract, but the authority is limited to making an ‘open contract’ and does not authorise the agent to insert special conditions as to title with which it is no part of the agent's duty to deal.111. The agent's implied authority is, aside

Page 9 of 15 Interpreting Actual Express Authority from any express terms to the contrary, to enter into an unconditional contract of sale.112. As observed by Greene LJ in this context:113. When an intending vendor instructs a house agent to sell his property, merely informing him of the price, the agent knows perfectly well that there will probably be many other terms in respect of which the parties must come to an agreement before the contract can be made which is to entitle him to his commission. He knows further that the negotiations may break down for a variety of reasons.

In Keen v Mear,114. for example, Russell J held that an agent was not authorised to sign a contract of sale on the vendor's behalf that contained a condition requiring the vendor to give ‘a good and sufficient title’ because such a condition was less favourable to the vendor (principal) than an ‘open contract’. In Ronald v Lalor,115. an earlier Australian case, it was held that an agent who is authorised to sell cannot, in the absence of express authority, sell conditionally on the purchaser's solicitor approving the title. A further illustration in this context is Wride v Holberton,116. where an intending vendor authorised an agent to sell his land as sole agent ‘at and for the gross price of £1,670’. The agent signed a contract of sale with a purchaser conditional on the purchaser applying for and accepting a first mortgage loan of £1470 from a recognised lending institution at an interest rate not exceeding 6.5% over a period of five years. Chamberlain J held that the authority given to the agent did not authorise the making of a

Page 160 conditional contract such as the one made and so denied to the purchaser specific performance of the contract.117.

111.This is specifically stated in the Agents Act 2003 (ACT) s 89B(2), which prohibits an agent or salesperson from inserting a special condition into a proposed contract for the sale of residential property. A breach of this prohibition is a strict liability offence: s 89B(3). 112.Rhodes Pty Ltd v Galati [1961] WAR 180 at 185

per Virtue J.

113.George Trollope & Sons v Caplan [1936] 2 KB 382 114.[1920] 2 Ch 574

at 398

.

.

115.(1872) 3 VR (E) 98. 116.[1963] SASR 336

.

117.Wride v Holberton [1963] SASR 336 at 338 .It was then argued that the agent had ostensible authority to contract as such. Chamberlain J, however, considered that there was nothing on the facts that could be construed as a representation by the defendant to the plaintiff that the agent had the authority in issue. The decision on this point can be queried, because it is unclear why a vendor holding out an agent as authorised to contract with a purchaser should not constitute a representation that the contract can be effected subject to conditions.The only way to explain the decision, and this was not stated in so many terms by Chamberlain J, is on the basis that the purchaser knew or should have known that the agent did not have authority to effect the contract subject to the condition in question.On the issue of knowledge of the third party in cases of alleged ostensible authority see 20.39–20.47.

Contract to contain usual and proper terms

7.26 An agent authorised to sell the principal's property has no implied authority118. to sell upon any terms he or she may choose, but only upon such terms as are usual and proper for that type of transaction.119. This limitation is essentially a reflection of the agent's duty of care to the principal: to promote the interests of the principal and to disclose to the principal information material to the agency.120. As such, it applies beyond agents authorised to sell their principals' property; all agents vested with authority to contract on behalf of a principal must do so upon usual and proper terms. This is of especial relevance where the term in issue is not for the principal's benefit, but is, from

Page 10 of 15 Interpreting Actual Express Authority the principal's perspective, in some way disadvantageous or onerous. Yet there is no need to prove that the term is disadvantageous or onerous to the principal; the relevant inquiry remains on what terms the agent is, in the circumstances, authorised to contract. For example, in Boyd v O'Connor,121. noted earlier,122. the Supreme Court of Victoria held that if, contrary to its holding, the agent had authority to sell, such authority would not have warranted the signing of a contract providing for the payment of purchase money at intervals and upon the terms in question. The terms provided for the payment of a £1000 deposit (£50 preliminary deposit, increased to £1000 within one month), £2250 within three months, and £3450 within six months, possession to be given after the second payment, there being no provision for interest on the balance. Mann J reasoned as follows:123. What exactly [an authority to sell the property for a specified price] would authorise is a question which may leave some room for debate, one view being that it would only authorise a sale for cash or upon credit to such an extent as is reasonably necessary to provide for the production of title, for the examination of title, and for doing what was necessary to carry the contract into effect. That is one view that has much to support it. Another view suggested is that such a general authority would do no more than that, and would justify the agent making a contract containing any terms of payment which could be said to be reasonable and proper, having regard to the interest of the vendor … Speaking for myself, I should think that, having regard to the great diversity of terms of payment which may be and are agreed to between parties to suit their own convenience, it would be almost impossible to arrive at any standard of what was reasonable and proper in the circumstances.However, whichever of those two views is correct, I am clearly of the opinion that the terms in this contract could not be regarded as usual or reasonable or proper without the express sanction of the vendors themselves.

118.And arguably also no ostensible authority: Rowe v Norrie (1914) 33 NZLR 274 at 280 per Cooper J; Shortal v Buchanan [1920] NZLR 103 at 105 119.Keen v Mear [1920] 2 Ch 574

per Sim J.

at 579

; Gardiner v Grigg (1938) 38 SR (NSW) 524 at 530

per Jordan CJ.

120.See 11.7–11.19. 121.[1923] VLR 603 at 607

per Mann J.

122.See 7.22. 123.Boyd v O'Connor [1923] VLR 603 at 607–8

.

7.27 Voge v Kerr124. illustrates this principle in the context of an agent authorised to lease the principal's premises. The plaintiff owned premises that she authorised her husband to lease to the defendant. The plaintiff's husband did so, and thereafter collected the rent on the

Page 161 plaintiff's behalf. On the plaintiff's attempt to eject the defendant, the defendant argued that the plaintiff's husband as agent had granted a lease for four years. The plaintiff denied both knowledge of any such lease for a term and any authority in her husband to grant the lease. Pring J considered that although the plaintiff's receipt of rent was strong evidence that she had assented to a lease of some kind given by her husband to the defendant, to say it was evidence of assent to a lease for four years would be going beyond the recognised principles of agency.125. Gordon J agreed, pointing out the fallacy of the defendant's argument as follows:126. Supposing the owner of a house puts his property in the hands of an agent to let on his behalf on a weekly tenancy. That agent, unknown to his principal, enters into a lease purporting to be on the owner's behalf, for a term of say 50 years, with onerous covenants binding that owner in various ways. The owner knows nothing about that lease and believes that the

Page 11 of 15 Interpreting Actual Express Authority agent has carried out what he told him to do. The owner receives from time to time rent which, as far as he knows, is the weekly rent due in accordance with the instructions given to his agent. I think with his Honour [Pring J] that it would be carrying the principles of the law of agency farther than any case I am aware of, to hold that in this case the mere fact of the receipt by the plaintiff of rent from the defendant, who no doubt on the evidence had become her tenant under an arrangement with the plaintiff's husband, was sufficient to entitle a jury to say that the plaintiff was bound by the terms of the agreement with regard to that tenancy made as she swore without any authority on her behalf and contrary to her instructions and without her knowledge.

124.(1919) 19 SR (NSW) 34

.

125.Voge v Kerr (1919) 19 SR (NSW) 34 at 36 . Curiously there was no argument raised by the defendant that the plaintiff's husband had ostensible authority to grant a lease for a term of four years. It could be argued that by allowing her husband to arrange the lease and collect the rent, the plaintiff held him out as being authorised to negotiate and agree on the terms of the lease. If this is correct, only had the defendant known that the plaintiff's husband had no such authority would the defendant's claim have been denied. 126.Voge v Kerr (1919) 19 SR (NSW) 34 at 37 . See also at 36 per Pring J (‘If that contention were to prevail, it would come to this, that, if the husband had made a lease for a long time, say 50, 60, or 70 years with a number of onerous covenants to be performed by the plaintiff, the mere receipt of the rent by the plaintiff would be sufficient to bind her to the whole of the terms of that lease, to its duration and also to the performance of those onerous covenants, there being no evidence that she knew anything whatever about the lease’).

7.28 Another way of viewing or expressing the foregoing is in terms of ‘usual authority’. The authority implied from an express actual authority is the agent's usual authority in the circumstances.127. So it has been said that ‘[in] the absence of express instructions prescribing the mode of sale, an authority given to an agent to sell is an authority to sell in the usual manner’.128. For example, in Tuck v Brown129. an agent employed by the vendor to arrange the sale of cattle inserted a term entitling the plaintiff purchaser to ‘have the first draft, and no other bullocks to be removed until his 200 are taken off’. The Supreme Court of New South Wales held that the agent had, in so doing, acted outside the scope of his authority. Long Innes J remarked that ‘to insert, without express authority, such a term as this is clearly not one of the powers which would be judicially recognised as necessarily implied from the appointment of an agent empowered simply to effect a sale according to the ordinary course of such transactions’.130. Similarly, in Talbot v McDonald131. Street CJ ruled that an authority to an agent to sell specific sheep did not entitle the agent to confer upon the purchaser considerable powers of selection and rejection, or for the postponement of delivery for one month. His Honour reasoned as follows:132. The only express authority given to him was an authority to sell the sheep. This was sufficient to give him power to make a contract on the defendant's behalf, but it did not authorise him to

Page 162 make any kind of contract that he liked. It did not confer power upon him to bind the defendant by a contract containing unauthorised, unusual or unreasonable terms. The instructions given to him to sell the sheep, gave him implied authority to do whatever was necessary for or ordinarily incidental to the completion of that transaction, and no more … I do not think that the jury, or this Court, could say that his instructions were sufficient, in themselves, to give him power to introduce into the contract terms conferring considerable powers of selection and rejection upon the purchaser, and providing for the postponement of delivery for a month, leaving the sheep at the risk of the vendor in the meantime.

Page 12 of 15 Interpreting Actual Express Authority

127.See 8.2, 20.14–20.16. 128.Tuck v Brown (1882) LR 3 (NSW) L 339 at 344 per Windeyer J. See also Wiltshire v Sims (1808) 1 Camp 258 at 259; 170 ER 949 at 950 per Lord Ellenborough (who referred to an agent being employed to sell in the usual manner, thereby making the agent an agent ‘for common purposes in a transaction of this sort’). 129.(1882) LR 3 (NSW) L 339. 130.Tuck v Brown (1882) LR 3 (NSW) L 339 at 346 (who later in his judgment warned that ‘we should be careful not loosely to extend the authority of agents’: at 349). See also at 344–5 per Windeyer J. 131.(1925) 25 SR (NSW) 267

.

132.Talbot v McDonald (1925) 25 SR (NSW) 267 at 271 . His Honour also held that the acts of the agent in this context were outside the scope of the agent's ostensible authority: at 273.

Exercise of authority to be consistent with the substance of the transaction

7.29 An agent's exercise of actual express authority must not be inconsistent with the substance of the transaction he or she has been engaged to facilitate, negotiate or effect. In part this is a particular illustration of the above point, in that the introduction of unusual terms not ordinarily incidental to the completion of the contract materially alter its character.133. Marriott v General Electric Co Ltd134. provides a useful example. There the appellant agreed to sell 51% of the issued share capital in a company to the respondent, subject to a more formal contract being executed to be based on the terms of the original agreement. Such a contract, when drawn up, added provisions for equal representation of the appellant and respondent on the directorate, thus depriving the respondent of the advantage of acquiring 51% of the issued share capital. The respondent authorised its agent to ‘sign and complete’ on its behalf ‘such documents as may be necessary to complete’ the agreement with the appellant. Purporting to act pursuant to this authority, the agent signed this contract. Upon discovering this difference, the respondent repudiated the contract and sought relief from its terms. The High Court of Australia granted this relief on the ground that an agent is not authorised to sign a contract at variance with the substantial character of the agency. This was explained by Rich, Dixon, Evatt and McTiernan JJ as follows:135. [T]he agency was special and not general.136. To bind the respondent company the transaction must fall within the ambit of the authority even though that ambit is ascertained by reference to the construction placed upon the authority by the appellant. The authority thus construed might enable the inclusion in the document of additional terms which extended or amplified the operation of the agreement they were intended to effectuate; but it could not allow the introduction of provisions at variance with the substantial character of that agreement.

As the contract in question could not reasonably be regarded as conclusive to the effectuation of the original agreement, the court held that the respondent was not bound by it.137.

133.This was the holding in Talbot v McDonald (1925) 25 SR (NSW) 267 at 272 134.(1935) 53 CLR 409; BC3590104

per Street CJ, discussed at 7.28.

.

135.Marriott v General Electric Co Ltd (1935) 53 CLR 409 at 418; BC3590104

(footnote supplied).

Page 13 of 15 Interpreting Actual Express Authority 136.As to the distinction between general and special agencies see 15.13–15.16. 137.(1935) 53 CLR 409 at 419; BC3590104. See also at 430–1 per Starke J. The appellant then argued that the respondent had ratified the agreement, but this argument was rejected: see 5.30.

7.30 Put another way, implied authority must be consistent with express authority. An example given by Long Innes J in Tuck v Brown138. suffices to illustrate the point. Assume that an owner of a house instructs an agent to sell the house for £5000 even though the owner would, unbeknownst to the agent, gladly sell it for £3000. Then, without a word of instructions from the owner, the agent sells the house for £3000. Two days after the sale a person, on behalf of the purchaser, asks the owner whether he or she would be content to take £3000, to which the owner agrees. On discovering that the agent had already sold the property for £3000, the vendor refuses to be bound by that sale. Long Innes J posed the following question regarding this example:139. Can it be contended that in such a case the owner's having expressed his willingness to take £3,000 would be evidence to go to the jury that he had given an implied authority to the agent

Page 163 to sell for £3,000? — or if, instead of making the reduction in price, the agent had undertaken to bind his principal by a covenant to build a stable, or to guarantee a right-of-way over some particular premises adjoining, it seems to me the same thing in principle.

Clearly the agent in this example has no actual express or implied authority to sell the house for a sum below that which he or she was instructed, nor to add or remove terms which affect the sale price.

138.(1882) LR 3 (NSW) L 339 at 348. Tuck v Brown (1882) LR 3 (NSW) L 339 at 348 is discussed at 7.28. 139.Tuck v Brown (1882) LR 3 (NSW) L 339 at 348.

Agent acting for own benefit

7.31 It has been judicially observed that a grant of actual authority should be implied as being ‘subject to a condition that it is to be exercised honestly and on behalf of the principal’.140. Griffith CJ in Lysaght Bros & Co Ltd v Falk141. went so far as to remark that ‘an agent who is not acting for his principal but for his own benefit is acting beyond the scope of his authority’. But this statement is misleading, in two senses. First, an act may be within an agent's ostensible authority notwithstanding that the agent acts for his or her own benefit, and the principal will be bound by that act unless the plaintiff knows or ought to know of a lack of actual authority in the agent to do that act.142. Second, it is misleading in its connotation that what would otherwise be an act within an agent's actual authority may lose that status because of the agent's motive. An act of an agent may be within his or her actual authority and yet be motivated by the agent's own interests. A typical example is where the agent's remuneration is dependent on effecting a transaction for the principal.

Page 14 of 15 Interpreting Actual Express Authority 140.Hopkins v TL Dallas Group Ltd [2005] 1 BCLC 543; [2004] EWHC 1379 (Ch) at [88] per Lightman J, citing Lysaght Bros & Co v Falk (1905) 2 CLR 421 141.(1905) 2 CLR 421 at 429–30

as authority. .See also Option Investments (Aust) Pty Ltd v Martin [1981] VR 138 at 143

Lush J (affd Martin v Option Investments (Aust) Pty Ltd (No 2) [1982] VR 464) authority must do so in good faith). 142.Tobin v Broadbent (1947) 75 CLR 378 at 401

per

(an agent in exercising his or her

per Dixon J. See further 20.38–20.50.

7.32 What can be said is that an agent's authority cannot extend to acts that are advantageous solely to the agent, as this is inconsistent with the agent's duty to act in the principal's best interests. Hence, an agent who is authorised to sell the property of the principal cannot, except with the principal's express authority, insert into the contract of sale a clause that benefits only the agent. In Hodges v Montgomery,143. for example, an agent employed to sell the vendor's property included in the contract of sale a clause which entitled the agent to deduct his commission from the deposit money. Hood J held that such a term was not within the agent's authority, because ‘[i]t is a clause solely in favour of the agent, who is not a party to the contract at all, giving him implied power to receive a deposit and express power to take out of it his commission whatever happens to the contract’.144. Accordingly, the vendor was entitled to refuse to agree to such a clause, and the agent was as a result deprived of his commission.145.

143.[1916] VLR 90

.

144.Hodges v Montgomery [1916] VLR 90 at 92

.

145.Hodges v Montgomery [1916] VLR 90 at 93

. As to the loss of remuneration by agents see 15.66–15.76.

7.33 Nor does an agent's authority encompass a breach of fiduciary duty (or any other breach of the agency relationship for that matter). For instance, in Tobin v Broadbent146. Dixon J held that the words of a power of attorney, however widely expressed, cannot be construed as authorising the attorney to deal with the principal's property for the attorney's own benefit, adding that ‘[s]omething more specific and quite unambiguous is needed to justify such an interpretation’. On the facts in Tobin v Broadbent (1947) 75 CLR 378 at 392–4; BC4700530 , the court held that stockbrokers do not, by reason merely of being entrusted with possession or custody of securities, have authority, whether actual or ostensible, to pledge them for their own benefit.147. The point is reflected in

Page 164 the Corporations Act 2001 (Cth), which requires a financial services licensee to ensure that property other than money (share certificates, for example) received in certain circumstances148. is dealt with in accordance with the requirements specified in regulations149. and, subject to those requirements, the terms and conditions on which the property was given to the licensee and any subsequent instructions given by the client.150.

146.(1947) 75 CLR 378 at 401; BC4700530

. See also Reckitt v Barnett Pembroke and Slater Ltd [1928] 2 KB 244

at 268 per Russell J (‘The primary object of a power of attorney is to enable the attorney to act in the management of his principal's affairs. An attorney cannot, in the absence of a clear power to do so, make presents to

Page 15 of 15 Interpreting Actual Express Authority himself or to others of his principal's property’); Sweeney v Howard (2007) 13 BPR 24,381; [2007] NSWSC 852; BC200706435 at [55] [58]

per Windeyer J.

147.Tobin v Broadbent (1947) 75 CLR 378 at 392–4; BC4700530

per Latham CJ.

148.Being the circumstances listed in Corporations Act 2001 (Cth) s 984A(1). 149.See Corporations Regulations 2001 (Cth) reg 7.8.07. 150.Corporations Act 2001 (Cth) s 984B. Failure to comply with this requirement is an offence: s 1311(1).

7.34 The aforesaid applies subject to any express provision in the authority to the contrary. If the principal expressly authorises an agent to commit an act that is not in the principal's interests or that is solely in the agent's own interests, the principal is bound by the consequences of his or her own act. Moreover, there may be circumstances, which are unlikely to be common, where the agent's authority may encompass doing an act that ordinarily would be seen as inconsistent with the relation of agency. In Australia and New Zealand Bank Ltd v Ateliers de Constructions Electriques de Charleroi,151. a case involving a contract for the supply of electrical equipment negotiated by the sole Australian agent of a foreign manufacturer, under which the entire price was payable in Australian dollars to the foreign manufacturer, progress payments were on occasion made by cheques in favour of the foreign manufacturer ‘c/- of’ the Australian agent, which were endorsed by the agent and paid into its bank account. Lord Pearson, who delivered the advice of the Privy Council, noted that in the ordinary case it is wrong for an agent without specific authority to endorse the principal's cheques and to pay them into his or her own account.152. Yet in view of exchange control difficulties, that the manufacturer had no bank account in Australia and that the agent's local expenses were included in the price, his Lordship implied into the contract of agency, to give it business efficacy, that the agent had authority to endorse the cheques and pay them into his own account. The court's preference for a practical commercial rather than a technical or legalistic view stemmed from the fact that what transpired was the only practical plan from a business point of view.153. Lord Pearson explained:154. Implied authority was necessary to give business efficacy to the transactions. In view of the large sums which the plaintiff company knew that [the agent] had earlier paid into that account under other contracts, it is easy and natural to infer the necessary authority to meet any difficulty caused by the fact that the precise method of payment by [the customer] differed from the methods of payment under earlier contracts.

151.(1966) 39 ALJR 414

.

152.Australia and New Zealand Bank Ltd v Ateliers de Constructions Electriques de Charleroi (1966) 39 ALJR 414 at 419 . 153.Australia and New Zealand Bank Ltd v Ateliers de Constructions Electriques de Charleroi (1966) 39 ALJR 414 at 419– 20

.

154.Australia and New Zealand Bank Ltd v Ateliers de Constructions Electriques de Charleroi (1966) 39 ALJR 414 at 420 .

End of Document

Nature of Implied Authority Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 8: Implied Authority > Chapter 8 Implied Authority Page 165

Chapter 8 Implied Authority [Current to September 2013] Please click on the link below to download the entire chapter. Nature of Implied Authority

8.1

Scope of mplied Authority

8.4

Implied authority to make representations

8.5

Implied authority to accept payment

8.7

Authority from engagement to find a purchaser Authority as to form of payment

8.7 8.10

Implied authority to detain persons

8.12

Implied authority dependent on duty of principal

8.13

Customary authority

8.14

Rules and usages of the market

8.14

Proof of custom

8.16

Illustrations of Agents' Implied Authority Auctioneers

8.18 8.19

Authority to sign on behalf of purchaser

8.19

Other implied authority

8.23

Limits on implied authority

8.24

Lawyers

8.25 Authority to institute proceedings

8.26

Authority to contract

8.27

Authority to incur costs and disbursements

8.29

Authority to receive notices

8.30

Page 2 of 4 Nature of Implied Authority Authority to compromise

8.31

Company officers

8.32

Individual director

8.33

Chairperson

8.34

Managing director

8.35

Company secretary

8.38

Company officer with more specific title

8.40

De facto managing director or controller — implied actual authority by acquiescence or conduct

8.41

Insurance brokers' implied authority to issue cover notes

8.45

Page 166

Nature of Implied Authority Please click on the link below to download the entire chapter.

8.1 As in the case of contractual implication generally, authority is implied in an agency relationship because it is impossible in an agency agreement to countenance and address the myriad specific matters that an agent can perform in order to properly carry out the express terms of his or her engagement. It is important to remember, however, that implying authority remains an exercise grounded in intention; the court's inquiry concerns the intention of the principal in conferring authority on the agent. As such, the authority impliedly granted by the principal to the agent ‘must be such as could be validly granted by express agreement’.1. For example, in the context of company law, it must be an authority the existence of which is contemplated by the company's constitutive documents. This is to be distinguished from ‘ostensible authority’, where the scope of the agent's authority is that which the principal represents or ‘holds out’ to third parties.2. The distinction is important because an agent who acts within implied authority commits no breach of the agency, whereas the same cannot necessarily be said of an agent who acts within ostensible authority.

1.

Equiticorp Finance Ltd (in liq) v Bank of New Zealand (1993) 32 NSWLR 50

2.

As to the doctrine of ostensible authority see Ch 20. Note that this distinction is not entirely clear cut, particularly in the context of usual authority: see 20.13–20.16.

8.2

at 133 per Clarke and Cripps JJA.

Page 3 of 4 Nature of Implied Authority Implied authority is commonly subdivided into three classes:3. incidental authority, usual authority, and customary authority. ‘Incidental authority’ is said to encompass the authority necessarily or normally incidental to the terms of the express authority.4. It therefore involves a process of construction, namely an inquiry into whether the terms of the agency necessarily confer upon the agent the implied authority to do the act in question. This is contrasted with ‘usual authority’, which is the type of authority that a person in the position or status of the agent in question would usually have.5. ‘Customary authority’ is sourced from the market in which the agent operates on the principal's behalf; the agent has implied authority to act according to the usages and customs of that market.6. Yet it must be understood that the distinction between these classes is inexact. The scope of incidental authority is, for instance, often impacted upon by the status or position of the agent in question. Similarly, customary authority, though stemming from the market in which the agent operates, is clearly also a function of the agent's position or status.

3.

Bowstead, p 112.

4.

Pole v Leask (1860) 28 Beav 562 at 574; 54 ER 481 at 487

per Romilly MR (affd Pole v Leask (1863) 8 LT 645)

; Bonette v Woolworths Ltd (1937) 37 SR (NSW) 142 at 150 per Jordan CJ; Industrie Chimiche Italia Centrale and Cerealfin SA v Alexander G Tsavliris & Sons Maritime Co (The ‘Choko Star’) [1990] 1 Lloyd's Rep 516 at 525 per Slade LJ. 5.

Case law suggesting that ‘usual authority’ can constitute a type of authority independent of implied authority (see Watteau v Fenwick [1893] 1 QB 346 , discussed at 20.51, 20.52) has been the subject of criticism and is unlikely to represent Australian law. See Bowstead, pp 115–17. This is not to deny the relevance of usual authority to the nature of the representation that provides the foundation for ostensible authority: see J A Hornby, ‘The Usual Authority of an Agent’ [1961] CLJ 239.

6.

See, for example, Goodey and Southwold Trawlers Ltd v Garriock, Mason and Millgate [1972] 2 Lloyd's Rep 369. As to customary authority see further 8.14–8.17.

8.3 It is also possible that a course of dealing between principal and agent may extend the agent's authority. This is also a form of implied authority, although it does not necessarily fit comfortably in the threefold classification noted above. Gillard J explained the point, albeit in the context of employment, in Powercor Australia Ltd v Pacific Power as follows:7. [I]f an employee performs a task on behalf of his employer who acquiesces in what he does, endorses it and gives effect to what he did, the employer is thereby authorising him to carry out that task. If this is permitted over a period of time then the clear inference is that he has that power within his employment to carry out that task. Indeed, the employee may have been expressly forbidden at some point to perform the task in question but if thereafter the employer with knowledge adopts the transaction and gives effect to it then in the absence of any contrary evidence one would be

Page 167 confident in drawing the inference that the employee's contract of employment has been varied authorising him to perform similar type tasks.

Although the foregoing exhibits shades of ratification, implied authority arising out of a course of dealing has broader consequences than a one-time ratification. The latter creates authority retrospectively, generally in relation to a single act, whereas implied authority presupposes existing authority, including an authority to perform similar acts in the future.8.

Page 4 of 4 Nature of Implied Authority

7.

[1999] VSC 110; BC9907547 at [1274]

8.

United States v Fulcher, 188 F Supp 2d 627 at 636 (WD Va, US District Ct 2002).

End of Document

.

Scope of Implied Authority Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 8: Implied Authority > Chapter 8 Implied Authority

Scope of Implied Authority Please click on the link below to download the entire chapter.

8.4 To determine the scope of implied authority, it is necessary to investigate those acts that are necessary or ordinarily incidental for the purpose of effecting the object for which the express authority is given, coupled with the custom, if any, in the industry or profession in which the agency subsists. As this matter will necessarily vary from one agency to the next, it is difficult to state principles in terms more specific, except to say that ‘an authority which is implied from an actual authority … must not be inconsistent with the substantial character of the agency’9. — that is, implied authority must be consistent with express authority. It is better to select certain types of conduct and consider their status as implied from the nature of the agency. It is also useful to consider the basic principles applicable to customary authority. Each is discussed below.

9.

Smith v Peter & Diana Hubbard Pty Ltd [2006] NSWCA 109; BC200603165 equivalent point in the context of express authority see 7.29, 7.30.

at [71] per Santow JA. On an

Implied authority to make representations

8.5 If the principal entrusts to an agent the conduct of negotiations for an agreement between the principal and another party, the agent's authority extends to making relevant statements to that end.10. The issue of an agent's implied authority to make representations as to the character or quality of the principal's property arises most commonly in the context of whether the principal is liable for a false or inaccurate representation by the agent. Regarding an agent employed to lease or sell the principal's property, Bacon VC in Mullens v Millermade the following observation:11. A man employs an agent to let a house for him; that authority, in my opinion, contains also an authority to describe the property truly, to represent its actual situation, and, if he thinks fit, to represent its value. That is within the scope of the agent's authority; and when the authority is changed, and instead of being an authority to let it becomes an authority to find a purchaser, I think the authority is just the same. I think the principal does thereby authorise his agent to describe, and binds him to describe truly, the property which is to be the subject disposed of; he authorises the agent to state any fact or circumstances which may relate to the value of the property.

In Mark Bain Constructions Pty Ltd v Avis,12. for example, where real estate agents had been engaged by a developer to market luxury apartments ‘off the plan’, the agents made representations, which proved to be misleading, as to views the apartments would enjoy. Fraser JA, with whom Chesterman JA and Fryberg J concurred, ruled that as the agents were engaged ‘to market for sale the proposed units’, the making of

Page 2 of 12 Scope of Implied Authority representations about the desirable views that would be available from the units once the building was constructed ‘plainly amounted to promoting

Page 168 the proposed units for sale’ and ‘formed part of [their] core function of marketing the units’.13. It accordingly fell within their implied authority, for which the developer–principal was liable. An agent's implied authority to make representations as to the principal's property does not, however, encompass authority to make representations as to how the principal would respond to dealings in relation to the transaction in question. The latter requires the conferral of express authority.14.

10. Australian Brokerage Ltd v Australian and New Zealand Banking Corp Ltd (1934) 52 CLR 430 at 450–1; BC3490110 per Dixon, Evatt and McTiernan JJ; Gardiner v Grigg (1938) 38 SR (NSW) 524 11. (1882) 22 Ch D 194

at 199

v Nelson (1984) 3 BPR 9211 BC200003059

. See also Hill v Harris [1965] 2 QB 601

at 530 per Jordan CJ. at 615–16 per Diplock LJ; Lavery

at 9212 per Powell J; Vettese v Kemp (2000) 77 SASR 53 at 64; [2000] SASC 154;

per Duggan J.

12. [2012] QCA 100; BC201202170

.

13. Mark Bain Constructions Pty Ltd v Avis [2012] QCA 100; BC201202170

at [18].

14. See, for example, Fairmede Pty Ltd v Von Pein [2004] ANZ ConvR 382; [2004] QSC 220; BC200404842 at [122] per Mullins J (who held that a defendant engaged to find a purchaser for the vendors' land lacked implied authority ‘to make representations to the purchaser about how the vendors would respond to requests for extensions of time under the contract or a request to modify the requirements for satisfying any obligation under the contract’).

8.6 Whether an agent has implied authority to make a representation or give a warranty depends on the terms of the agency and the usual course of business of the agent. For example, a mercantile agent15. has the implied authority to warrant the good he or she sells where it is customary in that trade to do so.16. It is difficult, however, to conceive that a principal would give an agent authority to make a misrepresentation as to the nature of the property to be sold or otherwise dealt with. It is unlikely, therefore, that misrepresentations could properly be characterised as coming within an agent's implied authority.17. They may, though, come within the agent's ostensible authority,18. for the principal could be seen as ‘holding out’ the agent as having authority to make what prove to be misrepresentations. Yet case authority suggests that misrepresentations can, in some circumstances, come within an agent's implied authority. In Australian Brokerage Ltd v Australian and New Zealand Banking Corp Ltd19. the High Court held that misrepresentations made by a director of a company charged with selling shares in the company were within the director's implied authority as agent, and so the company was liable for those misrepresentations.However, this case appears to have been influenced by the close connection and arguable identity between principal and agent, namely company and director. Moreover, the case should perhaps better be seen as one of ostensible authority, which generates the same outcome (that is, making the principal liable) without the incongruous conclusion that the principal actually authorised misrepresentations.

15. As to mercantile agents see 1.23–1.25. 16. Pickering v Busk (1812) 15 East 38 at 45; 104 ER 758 at 761 per Bayley J; Dingle v Hare (1859) 7 CBNS 145; 141 ER 770; Gardiner v Grigg (1938) 38 SR (NSW) 524

at 531 per Jordan CJ.

Page 3 of 12 Scope of Implied Authority 17. Mullens v Miller (1882) 22 Ch D 194

at 199–200 per Bacon VC.

18. As to ostensible authority see Ch 20. 19. (1934) 52 CLR 430 at 451; BC3490110

per Dixon, Evatt and McTiernan JJ.

Implied authority to accept payment Authority from engagement to find a purchaser

8.7 As a general rule, payment made in the ordinary course of business to the agent of a creditor is effective to discharge the creditor's liability to the principal if the agent has actual authority, or is held out sufficiently to attract ostensible authority, to receive that payment.20. However, the authority of an agent to find a purchaser for the principal's property does not, as a general rule, carry with it implied authority to receive any part of the purchase money.21. Nor does an authority to sell of itself confer an implied authority to receive any part of the

Page 169 purchase money,22. including any pre-contract deposit,23. and so it cannot be said that such a receipt by the agent is a receipt by the principal capable of discharging the purchaser.24. For an agent to have this authority, express terms are required. For instance, an authority to sell property and apply the proceeds in a particular way ‘obviously involves or implies an authority to receive the proceeds’.25. In each case, if the agent has purported to receive the money on behalf of a disclosed principal26. without authority, the agent's act can subsequently be ratified by the principal.27. While the foregoing principle is most commonly applied in relation to real estate agents,28. it has found application in cases for the sale of a business29. and the sale of goods.30. It has also been applied in respect of a power to mortgage the principal's property conferred by a power of attorney, such that the attorney (agent) lacked implied authority to receive the mortgage moneys.31.

20. See, for example, Bridges v Garrett (1870) LR 5 CP 451

. See further 19.14.

21. Howell v Owen (1882) 16 SALR 140 at 147 per Way CJ. The same is the case at general law in relation to solicitors as agents: Viney v Chaplin (1858) 2 De G & J 468 at 482; 44 ER 1070 at 1075–6 per Lord Chelmsford LC; Re Bellamy and Metropolitan Board of Works (1883) 24 Ch D 387 at 395–6 per Baggallay LJ; Bell v Rowe (1901) 26 VLR 511 at 517 per Madden CJ; Clarey v Permanent Trustee Co Ltd [2005] VSCA 128; BC200503236 at [99]–[101] per the court (in the context of a conveyancing agent). The position has, however, been modified by statute in Victoria: Property Law Act 1958 (Vic) s 69. 22. Clements v Hoppo [1937] SASR 231 at 235 per Cleland J; Henning v Ramsay (1963) 81 WN (NSW) (Pt 1) 71 at 74 per Walsh J (‘An agent, as such, has no implied authority to collect a deposit’).Contra Wells v Birtchnell (1893) 19 VLR 473

at 481 per Williams J.

23. Fischer v Parry & Beveridge Pty Ltd [1963] VR 97 further 23.49.

at 101 per Hudson J; Sorrell v Finch [1977] AC 728

. See

24. Petersen v Moloney (1951) 84 CLR 91 at 95 per Dixon, Fullagar and Kitto JJ, citing as authority Mynn v Joliffe (1834) 1 Mood & R 326; 174 ER 112; Drakeford v Piercy (1866) 14 LT 403; Butwick v Grant [1924] 2 KB 483 at 487–8 per Horringe J; Egan v Ross (1928) 29 SR (NSW) 382 25. Petersen v Moloney (1951) 84 CLR 91

at 388 per Harvey CJ in Eq.

at 95 per Dixon, Fullagar and Kitto JJ.

26. There can be no ratification by a principal who is undisclosed: see 19.46, 19.47.

Page 4 of 12 Scope of Implied Authority 27. Petersen v Moloney (1951) 84 CLR 91 Ch 5.

at 95 per Dixon, Fullagar and Kitto JJ. As to the doctrine of ratification see

28. See, for example, Howell v Owen (1882) 16 SALR 140

; Egan v Ross (1928) 29 SR (NSW) 382

.

29. See, for example, Henning v Ramsay (1963) 81 WN (NSW) (Pt 1) 71 at 74 per Walsh J. 30. See, for example, Smith v Peter & Diana Hubbard Pty Ltd [2006] NSWCA 109; BC200603165 31. Sweeney v Howard (2007) 13 BPR 24,381; [2007] NSWSC 852; BC200706435

(prime mover).

at [54] per Windeyer J.

8.8 Where the transaction the agent has been engaged to effect in respect of the principal's property involves the payment of a deposit at the date of contract, but the title passes only at a later date, that of completion, it is usual for the contract to prescribe the method of dealing with the deposit. If the contract of sale makes express provision for payment of the deposit to the agent, the agent's authority to receive the deposit is limited by the provisions of the contract.32. Conversely, as illustrated by the Queensland Court of Appeal's ruling in Gheko Developments Pty Ltd v Azzopardi,33. if the contract expressly requires a deposit or part payment to be paid to the vendor, payment to the vendor's agent will not be effective in the usual case because the express terms of the contract prevail. In that case, cl 7(2) of a contract for the sale of land required the purchaser to pay ‘$50,000 to the Seller’ within a set time. That payment was made, within time, to the seller's real estate agent rather than directly to the seller. The court held that the purchaser, in making the payment to the seller's agent, had not fulfilled the requirements of cl 7(2), and so rejected its claim for specific performance. It was unnecessary, according to McPherson JA who delivered the leading judgment, to probe the extent of an estate agent's implied authority to receive a deposit given that cl 7(2) expressly identified to whom the $50,000 was to be paid, namely ‘the Seller’,34. and nothing in the contract or cl 7(2) authorised payment to the estate agent. His Honour reasoned as follows:35. It may be and was said that it makes little difference that the deposit was paid to the agent, because it will in the end have to be accounted for to the seller. But it may make a considerable practical difference to the seller whether it or they receive it themselves or it is paid into the agent's trust account, where it is subject to trust obligations imposed by statute and to possible claims for

Page 170 commission. It is, however, not a question of whether payment to the agent can be equated with payment to the principal. [Clause] 7.2 is specific about the persons to whom the $50,000 deposit is to be paid. The [purchaser] … did not pay it in conformity with the provisions of cl 7.2, which is to say that it did not pay it at all or at any time in terms of the contract.

32. Brien v Dwyer (1978) 141 CLR 378 at 395; BC7800086 33. [2005] QCA 283; BC200505782

per Gibbs J.

.

34. Gheko Developments Pty Ltd v Azzopardi [2005] QCA 283; BC200505782

at [13].

35. Gheko Developments Pty Ltd v Azzopardi [2005] QCA 283; BC200505782 JA.

at [14]. See also at [41], [42] per Keane

Page 5 of 12 Scope of Implied Authority

8.9 Even if the agent is not authorised, either under the agency contract or the contract of sale, to receive the deposit, this does not displace the agent's duty to see to it that the stipulated deposit is paid and to alert the principal if it is not.36. Failure to perform this duty may dictate that the person introduced by the agent is not ready and willing to purchase, potentially denying the agent a claim for commission.37. To this end, there is New Zealand authority,38. supported by Australian High Court dicta,39. to the effect that a term may be implied into the contract of agency that the agent is duty bound to get in the deposit.40. That an agent is authorised to receive a deposit does not, however, confer an authority to bind the principal in dealings in respect of the deposit.41. For instance, an agent has no implied (or ostensible) authority to accept a late payment of the deposit, unless this is expressly permitted by the contract, the limits of which cannot be exceeded by the agent asserting to the purchaser an entitlement to accept a late deposit.42. Nor is an agent impliedly authorised to vary the terms under which a deposit is paid, such as by accepting a lower deposit than prescribed by the sale contract.43.

36. Neeson v Wrightson NMA Ltd [1989] ANZ ConvR 605 Ltd v Tucker [1990] ANZ ConvR 261

at 609–10 per Wallace J; Norton Manning Real Estate Pty

.

37. Brien v Dwyer (1978) 141 CLR 378 at 385; BC7800086 38. Pemberton v Action Realty Ltd [1986] 1 NZLR 286

per Barwick CJ. See further 15.35–15.38.

at 292 per Somers J.

39. Brien v Dwyer (1978) 141 CLR 378 at 385; BC7800086

per Barwick CJ. Cf at 395 per Gibbs J.

40. See also, in the context of auctioneers, Cyril Andrade Ltd v Sotheby & Co (1931) 47 TLR 244. Cf Ashenden & Co v Dorney (1930) 32 WALR 111

.

41. Markson v Cutler (2007) 13 BPR 25,127; [2007] NSWSC 1515; BC200711919 42. New Zealand Tenancy Bonds Ltd v Mooney [1986] 1 NZLR 280

at [7] per Brereton J.

at 283–4 (CA).

43. See, for example, Markson v Cutler (2007) 13 BPR 25,127; [2007] NSWSC 1515; BC200711919 (where, in circumstances of this kind, Brereton J remarked that ‘[a]uthority to communicate the negotiating position of the vendor to the purchaser does not include authority to vary a contract’, such that ‘if the contract contemplated the vendor might choose to accept a deposit other than 10 per cent, that does not confer on the agent authority to make that decision’; accordingly, ‘the agent's acceptance of a five per cent deposit could only bind the vendor if he were authorised to do so, and a real estate agent does not, absent special circumstances, have such authority’: at [10]).

Authority as to form of payment

8.10 The traditional view is that an agent authorised to sell or otherwise authorised to receive payment on behalf of the principal has no implied authority to receive payment other than in cash.44. According to this view, an agent has no implied authority to receive payment by cheque or via a bill of exchange or to accept credit terms.45. However, a reasonable custom to receive payment in any particular mode may be proved46. and in view of the common use of negotiable instruments and credit as legitimate methods of payment, it may not be difficult to adduce evidence of such custom.47. Land transactions again prove a good illustration in this context, for the same reason noted earlier. So, for instance, where the principal's property does not pass contemporaneously with payment but at a later date when the

Page 6 of 12 Scope of Implied Authority transaction is to be completed, case authority indicates that an agent has implied authority to receive a deposit by cheque, including perhaps a personal

Page 171 cheque.48. This is because it is the practice for the vendor to insist that the purchaser's cheque be cleared through the bank before final settlement by transfer of the vendor's property is effected. Payment by cheque may come within implied authority even if the contract requires the receipt of ‘cash’, at least if this requirement can be construed to refer to a cash as opposed to a terms transaction.49. Where a cheque taken by the agent has been honoured, the transaction is equivalent to payment in cash, in which case the principal cannot complain.50. Yet the implied authority to accept payment by cheque in a land transaction exists only ‘if there is no interference at all with the processing of the cheque and the obtaining of what might be called cold hard cash by the recipient’.51. Examples of such interference include where the cheque is post dated52. or is, at direction of the payer, to be put aside or not to be processed, in which case the cheque has ceased to be payment.53. Nor is there implied authority to accept payment by personal cheque where the principal's property passes at the time of payment, as the principal may not be adequately protected by payment by personal cheque.54. Normal usage in the type of transaction in question therefore impacts on the scope of an agent's implied authority.55.

44. Sweeting v Pearce (1859) 7 CBNS 449 at 485; 141 ER 890 at 905 per Byles J; Knox v Cockburn (1862) 1 QSCR 80 ; Pape v Westacott [1894] 1 QB 272 Poole [1973] QB 542

at 281 per Smith LJ, at 283 per Davey LJ; Chelmsford Auctions Ltd v

at 548 per Lord Denning MR.

45. Williams v Evans (1866) LR 1 QB 352 ; Breese v Lindsay (1882) 8 VLR (E) 232 ; Blumberg v Life Interests and Reversionary Securities Corp [1897] 1 Ch 171 (affd Blumberg v Life Interests and Reversionary Securities Corp [1898] 1 Ch 27

); Dennant v Skinner [1948] 2 All ER 29

46. Pape v Westacott [1894] 1 QB 272

.

at 283 per Davey LJ.

47. Bowstead, pp 130–1. 48. Josland v Mullaley Properties Pty Ltd [1994] ANZ ConvR 276 at 278; BC9302373 Estate Ltd v Angus [1993] ANZ ConvR 91

Manufacturing Ltd [2008] 1 NZLR 30; [2007] NZSC 62 49. Powell v Bickford [1969] WAR 195 91

per Young J. Cf Akarana Real

at 92–3 per Hillyer J; Southbourne Investments Ltd v Greenmount at [19]–[20] per Blanchard J.

at 200 per Lavan J. Contra Akarana Real Estate Ltd v Angus [1993] ANZ ConvR

at 92–3 per Hillyer J.

50. Bridges v Garrett (1870) LR 5 CP 451 Barker (1900) 16 TLR 393.

; Pearson v Scott (1879) 9 Ch D 198

51. Josland v Mullaley Properties Pty Ltd [1994] ANZ ConvR 276 at 278; BC9302373 52. Brien v Dwyer (1978) 141 CLR 378 at 395; BC7800086

at 208–10 per Fry J; Walker v

per Young J.

per Gibbs J.

53. Josland v Mullaley Properties Pty Ltd [1994] ANZ ConvR 276 at 278; BC9302373

per Young J.

54. See, for example, Pape v Westacott [1894] 1 QB 272 , where the principal instructed the agent not to hand over a licence to assign to the principal's tenant, who owed the principal rent in arrears, ‘until you have got that money out of him’. The English Court of Appeal held that by accepting a cheque — which was subsequently dishonoured— the agent had departed from his instructions, which required the payment to be received in cash: at 279 per Lindley LJ, at 281–2 per Smith LJ, at 283–4 per Davey LJ. 55. Donaldson v Noble (1888) 14 VLR 1021

; Powell v Bickford [1969] WAR 195

at 199–201 per Lavan J.

Page 7 of 12 Scope of Implied Authority

8.11 An authority to sell does not, as a general rule, confer implied authority to sell on credit56. or by a promissory note;57. an agent must sell for cash.58. Again, however, custom and usage may dictate otherwise. For instance, it has been said that a mercantile agent can, by virtue of his or her position,59. sell on wider terms, such as on reasonable credit.60. Similarly, an estate agent authorised to sell a property for ‘cash’, who secures a purchaser to contract under which the balance of the purchase moneys is payable within 90 days, has been held, on the grounds of commercial usage, to act within the scope of his or her authority if given a wide discretion to fix the terms of sale and there is no sustainable allegation that the contract is not a reasonable and proper contract having regard to the nature of the property.61.

Page 172

56. Wiltshire v Sims (1808) 1 Camp 258; 170 ER 949

; Howell v Owen (1882) 16 SALR 140

at 147 per Way CJ.

57. Walder v Cults [1909] VLR 261 at 274 per Hodges J (where the contract provided that ‘the purchaser shall … pay to the vendor's agent a deposit of one hundred pounds of the purchase money’; this was held to mean £100 in money, not by way of promissory note). The same is the case in relation to bills: Hine Bros v Steamship Insurance Syndicate Ltd (1895) 72 LT 79. 58. Barker v Greenwood (1837) 2 Y & C Ex 414; 160 ER 458. 59. As to the position and nature of mercantile agents see 1.23–1.25, 21.1–21.6. 60. Scott v Surman (1742) Willes 400 at 406–7; 125 ER 1235 at 1239 per Willes LCJ; Houghton v Matthews (1803) 3 B & P 485 at 489; 127 ER 263 at 266 per Chambre J; R and E Tingey and Company Ltd v John Chambers and Company Ltd [1967] NZLR 785

at 787 per Gresson J.

61. Lee v Irons [1958] VR 436

at 448 per Pape J.

Implied authority to detain persons

8.12 Whether an agent has implied authority to detain a person with a view to giving that person into custody of law enforcement authorities depends upon whether that act is within the scope of the agent's ordinary duties in representing the principal and whether it is within the principal's powers to do so. If the agent in so doing acts outside either the scope of his or her authority, or in any event beyond the powers of the principal to effect the detention, the agent or the principal or both can be liable in tort to the person detained. The cases in this respect most commonly deal with the relationship between employer and employee, not principal and agent, and so usually concern the issue of the employer's vicarious liability for the employee's acts.62. For this reason, their treatment belongs in the study of torts, not agency as such.63.

62. See, for example, Moore v Metropolitan Railway Company (1872) LR 8 QB 36 (detention of train passenger for failing to pay additional fare); Hanson v Waller [1901] 1 QB 390 (false imprisonment of person suspected of stealing liquor from employer's cellar); Percy v Glasgow Corporation [1922] AC 299 at 306–7 per Viscount Haldane, at 307– 8 per Viscount Finlay (false imprisonment of passenger on tramway car for tendering an indented penny); Deatons Pty Ltd v Flew (1949) 79 CLR 370; BC4900430 (barmaid acted outside the scope of her authority in injuring a patron out of spite, and so her employer was not vicariously liable for her act).

Page 8 of 12 Scope of Implied Authority 63. This is even though some of the cases are couched in the language of agency: see, for example, Moore v Metropolitan Railway Company (1872) LR 8 QB 36 at 38–40 per Blackburn J; Percy v Glasgow Corporation [1922] AC 299 at 306–7 per Viscount Haldane.

Implied authority dependent on duty of principal

8.13 In some circumstances, the scope of an agent's implied authority will be determined by reference to the duties of the principal. If the principal has appointed an agent in general terms in relation to a particular transaction or a class of transactions, and it is the duty of the principal to perform certain acts in respect of that or those transactions, the principal cannot deny the agent's authority to effect those acts. For example, as it is prima facie the duty of a shipowner to take over the cargo once it has reached the ship's rail (to load and stow it), it is within the ordinary and implied authority of the ship's agent, in the discharge of his or her duties to the shipowner, to arrange and pay for that loading and stowage of the cargo on board the ship.64. As explained by Pearson LJ in Blandy Brothers & Co Lda v Nello Simoni Ltd:65. The ship's agent is, in the normal case, the agent of the shipowner at the particular port, and the ship's agent, therefore, at that port stands in the shoes of the shipowner; and it is reasonable to suppose that he has the authority to do whatever the shipowner has to do at that port … It appears to me to be reasonably clear that there is a prima facie obligation on the shipowner to provide the stowage, and that it is to his interest and his concern to do so, and that there is, therefore, a prima facie obligation and authority for the ship's agent, who is the agent for the shipowner at the port of loading, to see that those operations are carried out … [So] when a person is appointed as ship's agent, in the absence of instructions to the contrary, he is entitled to assume that it is for him to ensure that the ship's cargo is duly loaded and duly stowed on board; and it is also part of his responsibility to insure the appropriate financial responsibility and liability for that purpose.

In Blandy the agency of the ship's agent was expressed in general terms, which did not restrict the agent's usual authority in this context. The ship's agent incurred expenses in loading and stowage and the English Court of Appeal held that, aside from any provision in the charterparty to the contrary, the ship's agent could look to the shipowner for an indemnity in respect of those expenses.66. However, the terms of the charterparty made the charterers liable to indemnify the ship's agents for these expenses.

Page 173

64. Blandy Brothers & Co Lda v Nello Simoni Ltd [1963] 2 Lloyd's Rep 393 at 402 per Willmer LJ, at 404 per Pearson LJ, at 404–5 per Diplock LJ. 65. [1963] 2 Lloyd's Rep 393 at 404. See also at 404–5 per Diplock LJ. 66. As to agents' right of indemnity see 18.8–18.20.

Customary authority Rules and usages of the market

8.14 If a principal authorises an agent to transact on the principal's behalf in a market regulated by statutory rules and regulations, the terms of the agent's authority are subject to those rules and regulations. The stockbroker–client

Page 9 of 12 Scope of Implied Authority relationship provides perhaps the most obvious illustration. A stockbroker, in carrying out a principal's instructions, must do so according to the usages of the stock exchange, including its articles, rules and regulations. It follows that a person who instructs a broker to buy or sell a security on his or her behalf authorises the broker to conduct the transaction according to the rules and regulations of the stock exchange. The agency is thereby subject to those rules and regulations, which effectively become part of the authority conferred by principal on agent.67. The same result can be attained via the avenue of implication.68. As the broker is unable to make a binding contract on behalf of a client without complying with the stock exchange rules and regulations, to give business efficacy to the agency contract, there must be implied into it a term that the principal will be bound by those rules and regulations that prescribe the manner of formation of a contract for the sale and purchase of a security.69. The principal therefore impliedly gives the broker authority to make the contract in the very form in which it is made, and so must by implication have accepted that the broker would be liable according to the rules of the exchange to all the consequences resulting from those rules. For example, in Bell Group Ltd v Herald & Weekly Times Ltd70. an offer by a broker on the floor of the stock exchange to sell a single parcel of shares was purportedly accepted by three brokers at the same time. The articles of the stock exchange prescribed a procedure to resolve disputes of this kind.The plaintiff, who was the principal of one of the brokers, sought unsuccessfully to restrain the exchange from conducting any such inquiry according to that procedure. Kaye J, in rejecting the plaintiff's claim, stated that:71. [A] person who engages a broker to buy or sell a security on the floor of the Exchange, by his agency contract authorises him to conduct a transaction in accordance with the relevant articles, rules and regulations of the Exchange and he thereby submits himself to the same articles, rules and regulations.

67. Harker v Edwards (1898) 57 LJ (NS) QB 147. 68. The need for any implication can be avoided by the express incorporation of market usages in the relevant contract: see, for example, W Noall & Son v Wan [1970] VR 683 (where stockbrokers sent to their client contract notes bearing the terms phrase ‘subject to the rules and regulations of the Stock Exchange of Melbourne’). 69. Bell Group Ltd v Herald & Weekly Times Ltd [1985] VR 613 at 618 per Kaye J. See further A Black, ‘Professional Responsibilities and Fiduciary Obligations of Securities Brokers’ (1991) 14 UNSWLJ 98 at 104–6. 70. [1985] VR 613

.

71. Bell Group Ltd v Herald & Weekly Times Ltd [1985] VR 613

at 621. See also Bonds and Securities (Trading) Pty Ltd

v Glomex Mines NL [1971] 1 NSWLR 879 at 886 per Street J (‘Each party, by employing a broker to sell and buy shares on the Stock Exchange, authorised him to act according to the usages, including any relevant articles and regulations of the Stock Exchange. The course of business in dealings on the Stock Exchange will provide the context in which the contractual relationship between the present parties is to be determined’); Osborne v Australian Mutual Growth Fund [1972] 1 NSWLR 100

at 102 per Street J; Nevitts Ltd v Cooper (1988) 10 Qld Lawyer Reps 40; Tag

Pacific Ltd v Bos Stockbroking (1989) 15 ACLR 337; BC8902221

.

8.15 The same logic applies in the context of accepted usages in a market. Where a principal consigns goods to an agent for sale in a particular market,72. the transaction is subject to the

Page 174 customs and usages of that market.73. The Supreme Court of the United States in Bibb v Alien explained this as follows:74. It is settled by the weight of authority that where a principal sends an order to a broker engaged in an established market or

Page 10 of 12 Scope of Implied Authority trade, for a deal in that trade, he confers authority upon the broker to deal according to any well-established usage in such market or trade, especially when such usage is known to the principal, and is fair in itself, and does not change in any essential particular the contract between the principal and agent, or involves no departure from the instructions of the principal; provided, the transaction for which the broker is employed is legal in its character, and does not violate any rule of law, good morals, or public policy.

For instance, regarding matters such as the time and mode of payment and delivery, the allowances to be made, the mode of adjusting disputes as to quality, and all such matters as arise upon the contract made in the market, the principal is bound by the usage, not because he or she is supposed to have made inquiries and to have known these matters, but because they were within the authority conferred upon the agent.75. Market usages and customs cannot, however, be used to change the intrinsic character of the agency transaction. For example, if the custom alleged in effect converts a broker employed to buy into a principal selling to himself or herself, thereby giving the agent an interest ‘wholly opposed’ to his or her duty as agent, it is inconsistent with the character of the agency, and the court will not hold it to be authorised.76. Nor can an agent rely on usages and customs as evidence of implied authority where these are inconsistent with the instructions received from the principal.77. The exception to this is noted earlier,78. namely where the agency relationship is governed by statutory rules and regulations that cannot be ousted by private agreement.

72. For example, the usages in a market in another country may differ from those in Australia: see Tobin v Broadbent (1947) 75 CLR 378 at 404; BC4700530

per Dixon J (in the context of stock market usages).

73. Baycliffe v Butterworth (1847) 1 Ex 425 at 429; 154 ER 181 at 183 per Alderson B; Robinson v Mollett (1875) LR 7 HL 802 at 826 per Cleasby B; Donaldson v Noble (1888) 14 VLR 1021 Mofflin (1906) 6 SR (NSW) 617 3058 (Ch) at [71] per Vos J. 74. (1893) 149 US 481

at 1036–8 per Higinbotham CJ; Bosanquet v

at 624 per Darley CJ; Accidia Foundation v Simon C Dickinson Ltd [2010] EWHC

at 489–90 .

75. Robinson v Mollett (1875) LR 7 HL 802 at 826 per Cleasby B. See also at 816 per Mellor J, at 836 per Lord Chelmsford. 76. Robinson v Mollett (1875) LR 7 HL 802 at 838 per Lord Chelmsford. 77. Bower v Jones (1831) 8 Bing 65; 131 ER 325; Cruse v Paine (1869) 4 Ch App 441

; Wride v Holberton [1963] SASR

336 at 339 per Chamberlain J; Laskin v Bache & Co Inc (1972) 23 DLR (3d) 385 . This reflects the notion that a court will not imply into a contract a term that is inconsistent with its express terms: see Summers v Commonwealth (1918) 25 CLR 144

(affd Summers v Commonwealth (1919) 26 CLR 180; BC1900038); Con-Stan

Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226

at 236–7 (FC).

78. See 8.14.

Proof of custom

8.16 For the custom alleged to affect an agent's implied authority, it must be both reasonable and notorious.79. Alleged usages that conflict with agents' fiduciary duties are prima facie unreasonable,80. although proof that such a usage was known, understood and agreed to by the principal provides an exception.81. The onus of proving the latter lies on the person alleging the existence of the agent's authority,82. and traditionally discharging this onus has not proven easy. North & South Trust Co v Berkeley83. illustrates the point. The plaintiffs instructed an insurance broker to arrange insurance coverage for goods in transit. When some of the goods were lost, the plaintiffs made a claim on the policy in question, which the underwriters rejected.At the request of the latter, the brokers instructed a firm of assessors to investigate

Page 11 of 12 Scope of Implied Authority

Page 175 the circumstances of the claim, the report of which the brokers gave to the underwriters, whilst retaining a copy. This, according to evidence adduced before the court, was an accepted usage in the insurance industry. The matter came before Donaldson J because, having studied the report, the underwriters reiterated their rejection of the claim and refused to disclose it to the plaintiffs on the ground that it was privileged. His Lordship held that this usage, even were it notorious,84. was not reasonable, for it amounted to placing the brokers in a position of conflict in representing two principals, both the insured and the underwriters.85. The consequences were explained as follows:86. [The brokers], in acting for the [underwriters], were undertaking duties which inhibited the proper performance of their duties towards the plaintiffs, but insofar as they acted for the [underwriters] they were not acting in discharge of any duty towards the plaintiffs. [The brokers] wore the plaintiffs' hat and the underwriters' hat side by side, and in consequence, as was only to be expected, neither hat fitted properly. The plaintiffs had a legitimate complaint on this account, and can claim damages if and to the extent that the partial disgorgement of their hat has caused them loss or damage.

This did not, however, entitle the plaintiffs to discovery of the documents sought, because the plaintiffs' action was against the broker, who was in breach of duty, not against the underwriters.

79. Nelson v Dahl (1879) 12 Ch D 568 980

at 575 per Jessel MR; North & South Trust Co v Berkeley [1971] 1 All ER

at 990 per Donaldson J; FAI Traders Insurance Company Ltd v ANZ McCaughan Securities Ltd (1990) 3 ACSR

279 at 303–6; BC9001723 per Cole J. Whether or not a custom is reasonable is a question of law: Bradburn v Foley (1878) 3 CPD 129 at 135 per Lindley J. 80. See 10.14–10.16. 81. Perry v Barnett (1885) 15 QBD 388

; Blackburn v Mason (1893) 68 LT 510.

82. Matveieff & Co v Crossfield (1903) 8 Com Cas 120. 83. [1971] 1 All ER 980

.

84. Donaldson J entertained doubts concerning the notoriety of the alleged usage: North & South Trust Co v Berkeley [1971]1 All ER 980

at 990.

85. North & South Trust Co v Berkeley [1971] 1 All ER 980 acting for conflicting principals see 12.41–12.46. 86. North & South Trust Co v Berkeley [1971] 1 All ER 980

at 990. As to the fiduciary proscription against an agent

at 993.

8.17 To be notorious, the usage must be generally recognised. The High Court has remarked to this end that ‘there must be evidence that the custom relied on is so well known and acquiesced in that everyone making a contract in that situation can reasonably be presumed to have imported that term into the contract’, though adding that ‘it is not necessary that the custom be universally accepted for such a requirement would always be defeated by the denial of one litigant of the very matter that the other party seeks to prove in the proceedings’.87. In that case, Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur (Australia) Ltd,88. the court was faced with an alleged custom that either an insurance broker alone is liable to an insurer for payment of the premium, or that payment of the premium to a broker discharges the insured's obligation to the insurer. Their Honours explained what was necessary to establish the custom alleged as follows:89. In order to establish a custom to the effect that a broker alone is liable to an insurer for payment of a premium on a policy of

Page 12 of 12 Scope of Implied Authority insurance … it is necessary to establish a clear course of conduct under which insurers do not look to the assured for payment of the premium. This may be established by proving either an absence of claims by insurers against assured, or the existence of claims directed exclusively to brokers as a practice rarely if ever departed from.

The evidence before the court established neither,90. but instead brought to light multiple instances of insurers seeking a second payment from the assured notwithstanding that they had already paid their brokers. Proof of a mere course of dealing between the agent and the third party will not, therefore, suffice to justify a usage to which the court will give effect. It may,

Page 176 however, be evidence relevant to substantiate an inference that the agent was authorised to so act if this is consistent with the conduct of the parties and the circumstances of the case.91.

87. Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur (Australia) Ltd (1986) 160 CLR 226 also Cunliffe-Owen v Teather & Greenwood [1967] 3 All ER 561

at 236 (FC).See

at 573 per Ungoed-Thomas J; General

Reinsurance Corp v Forsakringsakiebolaget Fennia Patria [1983] QB 856 at 871–3 per Kerr LJ, at 874–5 per Slade LJ, at 876–7 per Oliver LJ; Vitol SA v Phibo Energy AG (The ‘Mathraki’) [1990] 2 Lloyd's Rep 84 at 87–8 per Evans J. 88. (1986) 160 CLR 226

.

89. Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur (Australia) Ltd (1986) 160 CLR 226

at 238 (FC).

90. The effect of Con-Stan has since been reversed by Corporations Act 2001 (Cth) s 985B: see 19.10. 91. Freeman & Lockyer (a firm) v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 Hely-Hutchinson v Brayhead Ltd [1968] 1 QB 549

End of Document

at 502–3 per Diplock LJ;

at 583 per Lord Denning MR. See 8.42.

Illustrations of Agents' Implied Authority Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 8: Implied Authority > Chapter 8 Implied Authority

Illustrations of Agents' Implied Authority Please click on the link below to download the entire chapter.

8.18 In view of the fact-specific nature of implied authority, it is useful to provide illustrations of the incidents of implied authority in the context of various agency relationships. These are by no means exhaustive, but have been selected for the purpose of conveying an understanding of the nature of implied authority.

Auctioneers Authority to sign on behalf of purchaser

8.19 Like other agents, an auctioneer's authority depends on the terms of the agency agreement, which can be supplemented in this regard by any authority conferred by the auction conditions. What makes auctioneers somewhat unique as agents,92. and in this sense closer to being a ‘true’ agent than, say, a commission agent, is their implied authority to contract on behalf of both vendor and successful bidder in respect of the property or item they have been engaged to sell. Because of the Statute of Frauds writing requirements, which make certain contracts unenforceable in the absence of a memorandum in writing,93. auctioneers are impliedly authorised to sign such a memorandum both for the vendor and the purchaser.94. The purpose of the writing signed by the auctioneer ‘is to provide good evidence of the contract’.95. The position is statutorily modified in Victoria, where the contract or note or memorandum thereof must be signed by the party to be charged or by that party's agent authorised in writing to do so.96. Hence, in Victoria an auctioneer must have written authority to sign the contract (or note or memorandum thereof) in order to bind the vendor.

92. This rule has been described as ‘somewhat peculiar’: Chaney v Maclow [1929] 1 Ch 461 93. Van Praagh v Everidge [1903] 1 Ch 434 Nominees Ltd [1978] Ch 231 .

; Rainbow v Howkins [1904] 2 KB 322

at 477 per Lawrence LJ. ; Daulia Ltd v Four Millbank

94. Emmerson v Heelis (1809) 2 Taunt 38; 127 ER 989 ; Mews v Carr (1856) 1 H & N 484 at 488; 156 ER 1292 at 1293 per Pollock CB, at 1293 per Bramwell B; Sims v Landray [1894] 2 Ch 318 at 320 per Romer J; Bell v Balls [1897] 1 Ch 663 at 669–71 per Stirling J; Chaney v Maclow [1929] 1 Ch 461 at 479–80 per Russell LJ; Wilson & Sons v Pike [1949] 1 KB 176

at 182–3 per Tucker LJ; Wright v Madden [1992]1 Qd R 343

at 346 per Williams J.

95. Chaney v Maclow [1929] 1 Ch 461 at 474 per Lord Hanworth MR. See also at 477 per Lawrence LJ (‘the rule is due to the exigencies of a sale by auction and of an auctioneer's business in conducting such a sale’). 96. Instruments Act 1958 (Vic) s 126. See Futuretronics International Pty Ltd v Gadzhis [1992] 2 VR 217

.

Page 2 of 17 Illustrations of Agents' Implied Authority

8.20 The auctioneer's authority to sign affords the vendor protection against the successful bidder refusing to sign the contract.97. An auctioneer's authority as agent of the vendor is revocable by the vendor at any time before the property is finally knocked down to the highest bidder, although an auctioneer who has in the meantime contracted any liability to a third party is entitled to an indemnity from the vendor.98. However, neither the vendor nor the purchaser can revoke this authority once the property is knocked down to the purchaser.99. So if the vendor prevents the auctioneer from signing the memorandum on the vendor's behalf,

Page 177 the purchaser can sue the vendor, not in contract (for there is no enforceable contract at that stage) but on the ground that the vendor is liable for the agent's (auctioneer's) failure to sign.100.

97. Wright v Madden [1992] 1 Qd R 343 4 per Lord Hanworth MR.

at 350 per Williams J. See also Chaney v Maclow [1929] 1 Ch 461

98. Warlow v Harrison (1859) 1 El & El 309; 120 ER 925; Wright v Madden [1992] 1 Qd R 343 to an agent's right of indemnity see 18.8–18.20.

at 473–

at 347 per Williams J. As

99. Day v Wells (1861) 30 Beav 220; 54 ER 872 ; Bell v Balls [1897] 1 Ch 663 ; Van Praagh v Everidge [1902] 2 Ch 266 (revd on other grounds [1903] 1 Ch 434 ); Phillips v Butler [1945] Ch 358 ; Venuti v Toop Real Estate Group Pty Ltd [2004] SASC 169; BC200403418 100.Johnston v Boyes [1899] 2 Ch 73

at [19], [20] (FC).

; Wright v Madden [1992] 1 Qd R 343

at 349 per Williams J.

8.21 The auctioneer's authority to sign on behalf of the purchaser has been said to expire ‘the moment the sale is over’.101. Put another way, it is limited in time to when it ‘can fairly be held to be a part of the sale’.102. Most commonly this is immediately after the property is knocked down to the purchaser, though there is case law, namely Chaney v Maclow,103. to the effect that the signing can still be part of the transaction of sale if it is done later in the day at the office of the auctioneer. In that case, the English Court of Appeal remarked that the issue ‘is a pure question of degree and therefore a question of fact’,104. and thus ‘the court cannot lay down any definite period of time during which the authority persists’.105. On the facts, the auctioneer had left the auction room at 3.30 pm in the hope that the purchaser would be persuaded to come to the auctioneer's private office and sign the memorandum. When, one hour later, the auctioneer arrived at his office and was told that the purchaser had not signed the memorandum, the auctioneer signed it on the purchaser's behalf. The court held that the auctioneer's conduct had been reasonable, and given the short time intervening between the sale of the property and the signature by the auctioneer, there had been no ‘real break in the transaction’.106. Yet it is clear that the auctioneer's authority to sign on the purchaser's behalf does not subsist for some days or a week following the auction.107. Otherwise, it is said, ‘evils might arise similar to those which the Statute of Frauds was intended to prevent’.108. Hence, in determining the duration of the auctioneer's authority in any given case, the court cannot permit ‘the exigencies of a sale by auction’109. that justify the auctioneer's authority in this context to operate as a vehicle for fraud.

101.Mews v Carr (1856) 1 H & N 484 at 488; 156 ER 1292 at 1293 per Pollock CB. See also at 488; 1293 per Bramwell B.

Page 3 of 17 Illustrations of Agents' Implied Authority 102.Bell v Balls [1897] 1 Ch 663

at 671 per Stirling J. See also Chaney v Maclow [1929]1 Ch 461

Lawrence LJ; Phillips v Butler [1945] Ch 358

; Wright v Madden [1992] 1 Qd R 343

v Toop Real Estate Group Pty Ltd [2004] SASC 169; BC200403418 103.[1929] 1 Ch 461

at 477 per

at 350 per Williams J; Venuti

at [20] (FC).

.

104.Chaney v Maclow [1929] 1 Ch 461

at 475 per Lord Hanworth MR.

105.Chaney v Maclow [1929] 1 Ch 461

at 477 per Lawrence LJ.

106.Chaney v Maclow [1929] 1 Ch 461 Russell LJ.

at 479 per Lawrence LJ. See also at 475–6 per Lord Hanworth MR, at 482–3 per

107.Mews v Carr (1856) 1 H & N 484 at 488; 156 ER 1292 at 1293 per Pollock CB; Ecroyd v Davis (1872) 3 VR (L) 228 (six months); Bell v Balls [1897] 1 Ch 663 at 671 per Stirling J (one week). 108.Bell v Balls [1897] 1 Ch 663

at 671 per Stirling J.

109.Chaney v Maclow [1929] 1 Ch 461

at 477 per Lawrence LJ.

8.22 There is arguably no authority to sign for the purchaser if the auctioneer is selling his or her own property via the auction, for this may presumably prompt an abuse of authority.110. An auctioneer's authority to sign for the purchaser cannot be delegated to another person, as it is personal to the auctioneer,111. unless the auctioneer is expressly or impliedly authorised by the purchaser to delegate that function.112. Nor does this authority extend to rescinding or varying the contract in question.113.

Page 178

110.Wright v Dannah (1809) 2 Camp 203; 170 ER 1129; Farebrother v Simmons (1822) 5 B & Ald 333 at 334; 106 ER 1213 at 1214 per Abbott CJ (‘the agent contemplated by the legislature, who is to bind a defendant by his signature, must be some third person, and not the other contracting party upon the record’). 111.Hill v Willis (1880) 6 VLR (L) 193 ; Sims v Landray [1894] 2 Ch 318 ; Bell v Balls [1897] 1 Ch 663 at 671 per Stirling J; Chaney v Maclow [1929] 1 Ch 461 at 467, 472–3, 476 per Lord Hanworth MR. As to the nondelegation rule see Ch 9. 112.Bird v Boulter (1833) 4 B & Ad 443; 110 ER 522; Peirce v Corf (1874) LR 9 QB 210 193

at 196 (FC); Sims v Landray [1894] 2 Ch 318

; Hill v Willis (1880) 6 VLR (L)

.

113.Nelson v Aldridge (1818) 2 Stark 435; 171 ER 697.

Other implied authority

8.23 An auctioneer, for the purpose of enforcing his or her right to receive the purchase price, can sue personally as for goods sold and delivered, or bargained and sold, even where the auctioneer has sold for a disclosed principal.114. Like other agents authorised to sell their principals' property, auctioneers have implied authority to make representations as to the nature and character of the property in question, except where this authority is expressly limited by the agency agreement.115. Aside from express authority, though, there is no implied authority in an auctioneer to make a warranty in relation to the property.116.

Page 4 of 17 Illustrations of Agents' Implied Authority

114.Williams v Millington (1788) 1 H Bl 81; 126 ER 49; Wilson & Sons v Pike [1949] 1 KB 176 LJ.

at 182–3 per Tucker

115.See 8.5, 8.6. As to the liability of agents for misrepresentations as to the principal's property see 24.23–24.27 (liability in tort), 24.28–24.39 (liability under statute), 24.41 (offences). 116.Payne v Lord Leconfield (1882) 51 LJQB 642; Gardiner v Grigg (1938) 38 SR (NSW) 524 CJ.

at 530–1, 533 per Jordan

Limits on implied authority

8.24 An auctioneer has no implied authority to sell except by auction and therefore cannot, in the absence of express authority, sell by private sale.117. For example, in Gardiner v Grigg118. an auctioneer, who after the auction purported to substitute for the sale by auction three sales by private contract to three separate buyers in three separate lots, was held to be acting entirely outside the scope of his actual authority.Like other agents who are engaged to effect a sale of their principals' property, aside from express authority, auctioneers have no implied authority to receive from the purchaser payments for the property, whether a deposit or the balance of the purchase money.119. However, it is common for auctioneers to be vested with express authority to receive the deposit,120. in which case they must account for that deposit to the vendor except as directed otherwise by the vendor.121.

117.Marsh v Jelf (1862) 3 F & F 234; 176 ER 105 Re Williams (decd) (1912) 14 WALR 20; Smith v MacGowan [1938] 3 All ER 447

.

118.(1938) 38 SR (NSW) 524

at 533 per Jordan CJ.

119.See 8.7–8.11. 120.The issue may then arise as to whether an auctioneer can accept a cheque as opposed to cash for a deposit, and to what extent it can be said to be the auctioneer's duty to get in the deposit. These issues are addressed generally in the context of agents engaged to sell their principals' property: see 8.10, 8.11. 121.Brown v Farebrother (1888) 58 LJ Ch 3. As to accounting by agents generally for moneys received on their principals' behalf see 13.6–13.20.

Lawyers

8.25 The terms of the retainer agreement usually dictate, in general terms, the scope of the lawyer's representation and this will, in turn, determine the scope of the lawyer's authority as an agent of the client. Within the confines of the retainer, the agency relationship between lawyer and client carries with it the implied authority to do all such things incidental to the object of the representation.122. Hence, so far as implied authority is concerned, the task is to determine whether, given the object(s) of the representation, it could reasonably be said that the lawyer had authority to engage in the conduct in question without prior consultation and consent from the client. Various examples, discussed below, have been selected to illustrate the attitude of the courts. What the decided cases indicate, more generally, is that the weightier the legal consequence for the client of the lawyer's action, the readier is the court to find that the lawyer acted in excess of authority. This is illustrated by the decision of Keene LJ in South Bucks District Council

Page 179

Page 5 of 17 Illustrations of Agents' Implied Authority v Flanagan,123. who found it outside the implied authority of a solicitor appointed by a local council to prosecute a breach of an enforcement notice to agree to a withdrawal of the notice itself, as such an act ‘would be an action of great significance to the [council], extending far beyond the issue of the particular breach of the notice for which the prosecution has been brought’.

122.Polkinghoorne v Holland (1934) 51 CLR 143 Maxwell (1955) 72 WN (NSW) 333

at 156 per Rich, Dixon, Evatt and McTiernan JJ; Ex parte

at 336 per Roper CJ in Eq; Carrell v Carrell [1975] 2 NZLR 441

at 444–5 per

Cooke J; Forestview Nominees Pty Ltd v Perron Investments Pty Ltd (1999) 162 ALR 482 at 503; BC9901615 R D Nicholson J; Olympic Holdings Pty Ltd v Lochel [2004] WASC 61; BC200401675 123.[2002] 1 WLR 2601

; [2002] EWCA Civ 690

per

at [172] per McLure J.

at [23], with whom Sumner J concurred.

Authority to institute proceedings

8.26 The mere fact of acting generally as a lawyer for a client does not of itself confer any authority on the lawyer to institute legal proceedings on the client's behalf.124. Where, conversely, a client confers upon a lawyer express authority to institute suits generally, no additional authority is necessary to enable the lawyer to institute a particular suit.125. But the express authority to institute proceedings does not carry with it an implied authority to appeal, ‘particularly having regard to the expense to which the client would be put’.126. Nor does being instructed to act on behalf of a client concerning one matter confer authority to act for the client concerning a different matter.127.

124.Hawkins Hill Gold Mining Co v Briscoe (1887) 8 LR (NSW) Eq 123 at 129–30 per Stephen J. In this case it was argued that, if in cases of emergency, a solicitor cannot institute suit on behalf of a client by virtue of his general authority as solicitor, this would cause great hardship to clients outside the jurisdiction. Stephen J rejected this contention, observing (at 130) that ‘the power of instituting suits at [the solicitors’] own will, and perhaps for their own advantage, would be a dangerous one to put into the hands of solicitors’. 125.Hawkins Hill Gold Mining Co v Briscoe (1887) 8 LR (NSW) Eq 123 at 130 per Stephen J. 126.City of Glenorchy v Addison (1967) 15 LGRA 259

at 260 (FC(Tas)).

127.Hawksford v Hawksford (2005) 191 FLR 173; [2005] NSWSC 463; BC200503085

at [62] per Campbell J.

Authority to contract

8.27 The fact that a person is a lawyer does not in and of itself confer implied authority to make contracts on behalf of one who happens to be a client.128. What is necessary is express and clear authority to this end — instructions to execute the contract on the client's behalf, for example129. — without which a lawyer is unlikely, depending on the nature and incidents of the retainer, to have authority other than to negotiate on the client's behalf in anticipation of a contract being entered by the client.130. Pincus JA explained the logic for this in Kent v Hogarthas follows:131. A reason why people use solicitors in business transactions is to ensure that their dealings will be properly documented; one would not usually expect a solicitor, engaged in relation to a prospective contract, to have authority to contract orally, creating a situation fraught with the risk of dispute about the content and indeed existence of the contract, a risk the

Page 6 of 17 Illustrations of Agents' Implied Authority avoidance of which is one of the purposes of engaging a solicitor.

The leading case is Pianta v National Finance & Trustees Ltd,132. where a solicitor was retained to settle written terms of sale that he could advise his clients to accept and sign. The High Court of Australia found that the solicitor was impliedly authorised to negotiate and agree with the representatives of the respondent the terms that the respondent would accept, regarding which

Page 180 the solicitor could advise his clients as satisfactory and in their interest. However, this did not, in the court's opinion, confer upon the solicitor authority to contract to sell the land on his clients' behalf, which action required authority given expressly or by necessary implication.133.

128.Smith v Webster (1876) 3 Ch D 49 ; Daniels v Trefusis [1914] 1 Ch 788 at 798 per Sargant J; Lockett v Norman-Wright [1925]Ch 56 at 62 per Tomlin J; Eccles v Bryant and Pollock [1948] Ch 93 at 106 per Cohen LJ; D'Silva v Lister House Development Ltd [1971] Ch 17

at 28–9; Strangas v Young (1975) 1 BPR 9123

(CA(NSW)); Rymark Australia Development Consultants Pty Ltd v Draper [1977] Qd R 336 Nowrani Pty Ltd v Brown [1989]2 Qd R 582 205; BC200503989 73; BC200900869

at 344 per Campbell J;

at 586–8 per McPherson J; IVI Pty Ltd v Baycrown Pty Ltd [2005] QCA

at [4] per McPherson JA; Zhang v VP302 SPV Pty Ltd (2009) 223 FLR 213; [2009] NSWSC at [35] per White J.

129.North v Loomes [1919] 1 Ch 378 BC200501394

at 9124

at 382–3 per Younger J; Ryan v Starr (2005) 12 BPR 22,803; [2005] NSWSC 170;

at [61]–[64] per White J.

130.Stewart Upton Pty Ltd v Pindar (1990) NSW ConvR ¶55-529; Gamvrogiannis v Blackshaw (2000) NSW ConvR ¶55940; [2000] NSWSC 314; BC200001831

at [31], [32]per Macready M (each case involving a lease agreement).

131.[1995] QCA 472 (CA(Qld), Fitzgerald P, Pincus JA and Shepherdson J, 24 October 1995, unreported). 132.(1964) 180 CLR 146; BC6400840

.

133.Pianta v National Finance & Trustees Ltd (1964) 180 CLR 146 BC6400840

at 152 per Barwick CJ, at 157–8 per Menzies J;

.

8.28 Nor does the lawyer's implied authority, absent express terms to this effect, extend to agreeing to a variation of a client's contract — a lawyer retained simply to effect the sale of land on behalf of the vendor has no implied authority to vary the contract134. — or to raising money on behalf of the client to fund the transaction the lawyer is retained to effect.135.

134.George v Pottinger [1969] Qd R 101 9588

at 107 per Lucas J; CTM Nominees Pty Ltd v Galba Pty Ltd (1982) 2 BPR

(discussed at 25.1); Longpocket Investments Pty Ltd v Hoadley (1985) 3 BPR 9606

with whom Kirby P and Samuels JA agreed; Nowrani Pty Ltd v Brown [1989] 2 Qd R 582 Iannello v Sharpe (2006) NSW ConvR ¶56-162; [2006] NSWSC 713; BC200605479

at 9611 per Hope JA, at 588 per McPherson J;

at [10] per Windeyer J (revd

on a different point: Iannello v Sharpe (2007) 69 NSWLR 452; [2007] NSWCA 61; BC200701919

).

135. Stefanelli v Emanuelle(FC(WA), Pidgeon, Franklyn and Anderson JJ, 18 September 1995, unreported) BC9504176 at 9.

Page 7 of 17 Illustrations of Agents' Implied Authority

Authority to incur costs and disbursements

8.29 A lawyer clearly has implied authority to incur ordinary disbursements, such as service fees, filing fees, photocopying and the like.136. The position is different in the context of unusual expenses, as noted by Baggallay LJ in Re Blyth and Farnshawe:137. [I]f an unusual expense is about to be incurred in the course of an action it is the duty of the solicitor to inform the client fully of it, and not to be satisfied simply by taking his authority to incur the additional expense, but to point out that such expense will or may not be allowed in taxation as between party and party whatever the result of the trial.138.

It is therefore good practice for lawyers to discuss with their clients major disbursements, such as accountants' or valuers' fees, prior to incurring them.139. Certainly the briefing of counsel, being an important and expensive step in the litigation process, should not, except in situations of urgency, be pursued without having obtained client instructions or approval.140.

136.Schiliro v Gadens Ridgeway (1995) 19 Fam LR 196 137.(1882) 10 QBD 207 2013, 5.26–5.34.

at 207 (FC).

at 210. See further G E Dal Pont, Law of Costs, 3rd ed, LexisNexis Butterworths, Australia,

138.As to costs allowable in taxation as between party and party see G E Dal Pont, Law of Costs, 3rd ed, LexisNexis Butterworths, Australia, 2013, Chs 15–18. 139.Schiliro v Gadens Ridgeway (1995) 19 Fam LR 196

at 207 (FC).

140.Schiliro v Gadens Ridgeway (1995) 19 Fam LR 196

at 210 (FC).

Authority to receive notices

8.30 An English judge has described as ‘a common fallacy’ the view that lawyers have implied authority on behalf of their clients to receive notices,141. and the same approach has found favour in Australian courts. Powell JA in White v Illawarra Mutual Building Society Ltd,142. for instance, remarked that ‘[t]he fact that a client might be accustomed to retain the services of a particular solicitor or firm of solicitors in matters of a particular type does not constitute that solicitor or that firm of solicitors the client's standing agent to receive notice of material facts’. This principle was applied by the Queensland Court of Appeal in IVI Pty Ltd v Baycrown PtyLtd,143. where the vendor of land, having signed a contract for its sale to a buyer, purported to revoke its offer to sell by a communication to a firm of solicitors nominated in the contract as the ‘buyer's solicitor’. The buyer had faxed its acceptance of the offer prior to receiving notice

Page 181 of the revocation, but after the notification to the solicitors in question. The court found the revocation to be ineffective, McPherson JA reasoning as follows:144. [T]he mere fact that a solicitor is acting for the offeree does not authorise him or her to receive such notice on behalf of the offeree or make his receipt of it the equivalent of communication of a notice of withdrawal or revocation to the offeree himself. It all depends on what the solicitor has been authorised to do on behalf of the offeree. The fact that, if in due course

Page 8 of 17 Illustrations of Agents' Implied Authority a contract transpires between offeror and offeree, someone has been nominated to be the offeree's solicitor for the purpose of attending to settlement or completion of the contract is not enough. It does not make him or her in advance the agent of the offeree for the purpose of receiving notice of withdrawal or revocation of the offer before the contract has been formed or concluded.

It is therefore prudent for lawyers to ensure that any authority to receive notices on a client's behalf be conferred expressly via the terms of the retainer, although the decision in IVI v Baycrown should not be construed to suggest that courts are never inclined to infer the existence of implied authority in this regard. Where the circumstances of the case, including the terms of the dealings between agent and principal, reveal implied authority to be necessary for the practical workings of the relationship, an inference of such authority may be made.145.

141.Singer v Trustee of the Property of Munro [1981] 3 All ER 215 142.[2002] NSWCA 164; BC200203988 Rayner (1880) 14 Ch D 406 143.[2005] QCA 205; BC200503989

at 218 per Walton J.

at [128], citing as authority Saffron Walden Second Benefit Building Society v

(see at 409 per James LJ, at 413 per Bagallay LJ, at 415 per Bramwell LJ). .

144.IVI Pty Ltd v Baycrown Pty Ltd [2005] QCA 205; BC200503989 at [3]. See also at [39], [40] per Keane JA. The court also found no basis for concluding that the solicitor in question had any ostensible authority to receive the notice or revocation: see 20.60. 145.See, for example, Riltang Pty Ltd v L Pty Ltd (2002) 12 BPR 20,281; [2002] NSWSC 625; BC200203933 context of a managing agent's authority to receive notices).

(in the

Authority to compromise

8.31 The weight of authority supports the proposition that a lawyer retained to conduct litigation ordinarily has implied authority to bind his or her client to a compromise of the proceedings provided that ‘he or she does not act contrary to instructions, the circumstances do not otherwise indicate that express instructions are required, the compromise does not include matters collateral to the action, and the compromise is effected in a fair and reasonable manner so that it is fairly within the limits of authority’.146. This general principle was queried by Somers J in Thompson v Howley:147. When the [client] instructs his solicitor to commence proceedings I find it difficult to suppose he would contemplate that once commenced the solicitor could settle without reference to him and with no recourse by him … If the authority exists it must be something imposed by the law as a necessary concomitant of the relation of solicitor and client in the particular instance. I cannot think there is anything in that relation which could justify it save only the apparent want of logic and cohesion in the disparity between actual and apparent authority. Nor does experience suggest that solicitors, in this country at all events, conduct the practice of litigation on the footing of the possession of such authority.

These remarks are compelling. As the terms of a compromise or settlement reflect the final outcome of the suit for the client, it appears contrary to logic for the lawyer to be entitled to determine these terms unless this is clearly prescribed by the retainer. Yet to the extent that the lawyer does possess the implied authority to compromise, the client's recourse lies

Page 182 in proving negligence in effecting the compromise on the lawyer's behalf148. (which in itself could be frustrated if the compromise was made by counsel),149. or in establishing a ground that would render a contract void or voidable,

Page 9 of 17 Illustrations of Agents' Implied Authority say, duress, undue influence, misrepresentation or mistake.150. In any case, though, a prudent lawyer will seek instructions from a client prior to effecting a compromise.151.

146.Across Australia Finance Pty Ltd v Bassenger [2008] NSWSC 799; BC200807110

at [78] per White J. See further

Re Newen [1903] 1 Ch 812 at 817 per Farwell J; Little v Spreadbury [1910] 2 KB 658 at 663 per Bray J, at 665 per Lord Coleridge J; Sheonandan Prasad Singh v Abdul Fateh Mohammad Reza (1935) LR 62 Ind App 196 at 199–200 per Lord Atkin; Wells v D'Amico [1961] VR 672 Ltd [1982] Ch 374

at 676–7 per Gavan Duffy J; Waugh v HB Clifford & Sons

at 387 per Brightman LJ; Tsangaris v Gaymark Investments Pty Ltd (1986) 82 FLR 269

;

Donellan v Watson (1990) 21 NSWLR 335 at 342 per Handley JA; Buseska v Sergio (1990) 102 FLR 157 ; Dominion Metals Pty Ltd v Shemmessian(SC(WA), Nicholson J, 16 December 1993, unreported) BC9301601 at 13– 14; Esanda Finance Corporation Ltd v Alvaro(SC(WA), Parker J, 18 December 1998, unreported) BC9807022 23–6; Zhen v Downer [2006]ACTSC 120; BC200610403 City Council [2010] NSWLEC 192; BC201007426 147.[1977] 1 NZLR 16

at

at [25]–[31] per Crispin J; Presrod Pty Ltd v Wollongong

at [70]–[85] per Craig J.

at 25. See also Kontvanis v O'Brien (No 2) [1958] NZLR 516

at 518 per FB Adams J.

148.Courts have in any event been reluctant to find a lawyer negligent in giving advice as to the compromise of a dispute: see Dal Pont, Lawyers' Professional Responsibility, [5.195]. 149.Counsel is immune from actions in negligence for in-court work and work sufficiently connected therewith. Settlement of an action during its progress in court (Biggar v McLeod [1978] 2 NZLR 9

at 14 per Richardson J) or at the door of

the court (Kelley v Corston [1998] QB 686 ) can also be regarded as work sufficiently connected with the conduct of the litigation to attract the immunity. The immunity has been judicially abrogated in England and New Zealand ( Arthur J S Hall & Co (a firm) v Simons [2002] 1 AC 615 [2006] NZSC 70 BC200500919

; [2000] UKHL 38

; Chamberlains v Lai [2007] 2 NZLR 7;

) but remains in Australia (D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12; ).

150.Harvey v Phillips (1956) 95 CLR 235 at 243–4; BC5600330 (FC). That the client's consent to the compromise was grudging and reluctant is not sufficient to establish duress in this context, especially where it is shown that the client's cause or defence was weak: see, for example, Shehata v Hussein [2004] NSWSC 617; BC200404333 per Barrett J.

at [18]–[22]

151.Sheonandan Prasad Singh v Abdul Fateh Mohammad Reza (1935) 62 LR Ind App 196 at 199–200 (PC); Harvey v Phillips (1956) 95 CLR 235 at 242–4; BC5600330 per Brightman LJ.

(FC); Waugh v HB Clifford & Sons Ltd [1982] Ch 374

at 388

Company officers

8.32 The issue of implied authority that most often arises in company law is the extent of the authority attached to a position in a company. Generally speaking, ‘the more senior the role the greater the person's implied authority is likely to be’,152. and so not all company officers enjoy the same implied authority. Nor can it be assumed that company officers in one company enjoy the same implied authority as company officers in another company even where they bear the same position description.153. This serves as a rider to the following discussion of certain company office holders' implied authority.

152.Giltrap City Ltd v Commerce Commission [2004] 1 NZLR 608

at [40] per Gault P and Tipping J.

Page 10 of 17 Illustrations of Agents' Implied Authority 153.Beach Petroleum NL v Johnson (1993) 115 ALR 411 at 574; BC9304801 per von Doussa J (who noted that the scope of the authority of a director may vary widely from company to company and according to the circumstances of the case).

Individual director

8.33 Where the management powers are conferred by the company constitution on the directors they must, as a general rule, exercise those powers as a board. A director has no implied authority to act unilaterally; ‘[d]irectors can only act collectively as a board and the function of an individual is to participate in the decisions of the board’.154. Nevertheless, where the constitution allows, the board may delegate powers to one of its number or to other company officers.155. Such a delegation must be expressly conferred or implied from the conduct of the parties. It cannot be implied as attaching to a particular position. However, in a company with one director/shareholder, that director has wide authority by virtue of the Corporations Act 2001 (Cth) s 198E(1), which reads: The director of a proprietary company who is its only director and only shareholder may exercise all the powers of the company except any powers that this Act or the company's constitution (if any) requires the company to exercise in general meeting. The business of the company is to be managed by or under the direction of the director.

Page 183

154.Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146 at 205; BC9002916 also D'Arcy v Tamar, Kit Hill and Callington Railway Co (1867) LR 2 Ex 158 . 155.Re Clune (1988) 14 ACLR 261

per Dawson J. See

at 266 per French J.

Chairperson

8.34 It is normal practice in large companies for the directors to appoint one of their number to chair meetings of the board. Though essentially an administrative role, it sometimes carries with it the responsibility of representing the company to the outside world. Yet a chairperson will not usually have any more authority to make contracts on behalf of the company than the other individual directors.156.

156.Hely-Hutchinson v Brayhead Ltd [1968] 1 QB 549 of Victoria v Parry (1990) 2 ACSR 15 at 29; BC9001332

Managing director

8.35

at 586 per Lord Wilberforce, cited with approval in State Bank per Nicholson J.

Page 11 of 17 Illustrations of Agents' Implied Authority The Corporations Act 2001 (Cth) includes a replaceable rule that allows directors to confer on a managing director any of the powers that the directors can exercise.157. Similar provisions were included in most companies' articles of association. Where the directors do not expressly confer any powers on a managing director, there will still be an implied conferral of power. The law is that ‘when a board of directors appoint one of their number to be managing director … [t]hey thereby impliedly authorise him to do all such things as fall within the usual scope of that office’.158. The ‘things that fall within the usual scope of that office’ are a question of fact to be determined on a case-by-case basis taking into consideration factors including the size of the company, the nature of its commercial undertakings and the role and responsibilities of the managing director. Generally speaking, however, the managing director of a company has authority to commit the company to contracts entered into within the ordinary course of the company's business.159. The position differs in the case of contracts that fall outside the company's normal trading activity.160. Ultimately, in each case a court will require sufficient evidence from which to infer what, in that case, the usual scope of the office of managing director was.

157.Corporations Act 2001 (Cth) s 198C(1). 158.Hely-Hutchinson v Brayhead Ltd [1968] 1 QB 549

at 583 per Lord Denning MR.

159.Birjandi v Todaytech Distribution Pty Ltd [2005] WASCA 44; BC200500987

at [34] per Steytler P. See, for example,

Capper's Pty Ltd v L & M Newman Pty Ltd [1960] NSWR 143 at 145–6 (FC) (where it was held that the managing director had authority to bind the company under a contract for the purchase of steel because it was in the ordinary course of the company's business). 160.See, for example, Hightime Investments Pty Ltd v Adamus Resources Ltd [2012] WASC 295; BC201206174 (where Edelman J found that the alleged contract, effected by an executive director of the defendant company, was not within the director's implied authority because it was ‘far from a normal trading activity for the defendant’, for two reasons: first, it involved a strategic decision of critical importance to the business of the defendant; and second, the alleged dealing would have committed the defendant to a payment that could potentially even have comprised a large part, possibly even the majority, of its then market capitalisation: at [151]–[153]).

8.36 Courts have been somewhat reticent to recognise any implied authority in a managing director where this involves acts or instructions against the backdrop of insolvency, reasoning that in such cases the company as a board has a legitimate interest.As explained by one judge:161. [I]n the absence of evidence of the grant of express authority or evidence from which an inference of the grant of authority could be drawn, it could not be said that the appointment to the office of managing director carried with it the authority to make critical decisions following the presentation of a petition to wind the company up.

For example, in Nece Pty Ltd v Ritek Incorporation162. S, as managing director of the applicant joint venture company (‘Nece’), was responsible for managing its day-to-day operations. S instructed lawyers in respect of two proceedings involving the company: to recover a debt owed to the company, and to oppose a winding up application filed against the company. The company's articles of association provided that the directors could confer on the managing director any of the powers exercisable by them. There was no evidence before the court that the directors had conferred any particular powers on S as managing director. Lehane J held

Page 184 that S lacked the express authority to instruct lawyers but went on to consider whether this came within his implied authority. His Honour accepted that authority of this kind might be implied ‘from the circumstances of [S's] appointment, the circumstances in which, and the manner in which, he conducted the business operations of Nece and the

Page 12 of 17 Illustrations of Agents' Implied Authority circumstances of the particular transactions in question’.163. On the facts, however, Lehane J found there to be insufficient evidence from which to infer that S as managing director had the authority to instruct lawyers in these circumstances. The reasons for this his Honour explained as follows:164. It is … highly unlikely that a managing director entrusted with the day to day management of a company would not have implied authority to instruct solicitors to take proceedings to recover debts or to resist claims against the company where the transactions concerned occurred in the daily operation of the company's business. It would not follow, however, that the managing director should be regarded as having implied authority, if the evidence went no further, to instruct solicitors to oppose a winding up application of any apparent substance. Rather, it might be expected that that would be a matter with which the board would be directly and immediately concerned. In this case, such material as there is … extends only to the day to day conduct of the company's business operations. But, while evidence of what happened in the daily business affairs of Nece might be relevant to the question of the managing director's authority to instruct solicitors in matters arising in the course of those daily affairs, it would not, in my view, cast any light on the implied authority of the managing director to take steps (including instructing solicitors) in response to a winding up application by Ritek.

His Honour also concluded that there was insufficient evidence of a course of action from which it might be inferred that S had the authority to instruct lawyers in these circumstances:165. It is possible to imagine circumstances which might lead to a finding of implied authority for that purpose: for example, if it were established that, during the course of the transactions giving rise to the claim founding the statutory demand, and perhaps also the circumstances giving rise to an alleged offsetting claim, [S] consistently, and to the knowledge of the board, represented the interests of Nece in its dealings with Ritek. Such evidence might establish that [S] was recognised by the directors of Nece as representing Nece in all, or substantially all, aspects of the relevant transactions; and, if that were so, it might not be a difficult step to conclude that he was authorised equally to deal with disputes arising out of the transactions, including, should Ritek choose to pursue any claims it might have by initiating winding up proceedings, by taking steps on behalf of Nece in those proceedings … But that is speculation. There is before me on the motions no material of that sort; and the evidence that is before me is not capable, in my view, of establishing that [S] had authority to instruct solicitors to commence the statutory demand proceedings.

161.Re Qintex Ltd (No 2) (1990) 2 ACSR 479 at 482; BC9000075 162.(1997) 24 ACSR 38; BC9702429

per Underwood J.

.

163.Nece Pty Ltd v Ritek Incorporation (1997) 24 ACSR 38 at 42; BC9702429

.

164.Nece Pty Ltd v Ritek Incorporation (1997) 24 ACSR 38 at 43; BC9702429

. See also Re Qintex Ltd (No 2) (1990) 2

ACSR 479; BC9000075 (where Underwood J held that, aside from express authority, the managing director of a company did not by reason simply of being the managing director have implied authority to instruct lawyers to oppose a winding up application). 165.Nece Pty Ltd v Ritek Incorporation (1997) 24 ACSR 38 at 43; BC9702429

.

8.37 Another scenario that has inclined judges against accepting broad implied authority is in the context of litigation commenced by the managing director that puts into issue aspects of the internal administration of the company.166. As in the case of prospective insolvency, the courts reason that these are matters in which the board should exercise collective authority.

Page 13 of 17 Illustrations of Agents' Implied Authority

166.See, for example, Hawksford v Hawksford (2005) 191 FLR 173; [2005] NSWSC 463; BC200503085 Campbell J.

at [70] per

Company secretary

8.38 The authority of a company secretary to enter into contracts on behalf of a company has traditionally been considered to be very limited. In the well known words of Lord Esher MR, ‘[a] secretary is a mere servant; his position is that he is to do what he is told, and no person can

Page 185 assume that he has any authority to represent anything at all’.167. Yet that view of the function or status of company secretaries does not accurately reflect the modern role of secretaries in large companies.168. As company secretaries today perform an important role in the administrative affairs of companies and most often attend to various regulatory requirements and compliance issues, it would be impracticable to expect secretaries to carry out these functions were they prohibited from entering at least some contracts on behalf of companies. For example, in Panorama Developments (Guildford) Ltd v Fidelis Furnishing Fabrics Ltd169. Lord Denning MR remarked that a company secretary ‘regularly makes representations on behalf of the company and enters into contracts on its behalf which come within the day-to-day running of the company's business’, and‘is certainly entitled to sign contracts connected with the administrative side of a company's affairs, such as employing staff, and ordering cars, and so forth’. Although the case dealt with the issue of ostensible authority,170. it shows that the authority of the modern company secretary cannot be assumed to be as limited as once was the case.

167.Barnett, Hoares & Co v South London Tramways Co (1887) 18 QBD 815 818 per Lopes LJ; George Whitechurch Ltd v Cavanagh [1902] AC 117

at 817. See also at 817 per Fry LJ, at at 124 per Lord Macnaghten; Ruben v

Great Fingall Consolidated [1906] AC 439 at 444 per Lord Macnaghten (a case dealing with a forged share certificate fraudulently issued by the company secretary, it being held that a company secretary is a mere servant, and may be the proper hand to deliver out certificates which the company issues in due course, but has no authority to guarantee the genuineness or validity of a document that is not the deed of the company). 168.First Energy (UK) Ltd v Hungarian International Bank Ltd [1993] 2 Lloyd's Rep 194 at 204 per Steyn LJ (noting that ‘the managerial functions of a company secretary are today far greater than they once were’); Lovett v Carson Country Homes Ltd [2009] 2 BCLC 196; [2009] EWHC 1143 (Ch) at [94] per Davis J. 169.[1971] 2 QB 711

at 716–17. See also at 717–18 per Lord Salmon.

170.As to which see Ch 20.

8.39 Not only has the role of the secretary changed over time, it is impossible to point to those functions that are usually carried out by all company secretaries. While it is no longer true to say that secretaries have no authority to enter into contracts, any implied authority is likely to be limited to relatively minor administrative matters. So a company secretary is unlikely to have implied authority to enter into a contract to borrow money on behalf of the company,171. or to give instructions for the institution of legal proceedings in which the company had an interest.172.

Page 14 of 17 Illustrations of Agents' Implied Authority 171.Re Tummon Investments Pty Ltd (in liq) (1993) 11 ACSR 637; BC9303046 director). 172.Club Flotilla (Pacific Palms) Ltd v Isherwood (1987) 12 ACLR 387; BC8701101

(where the secretary was also a

.

Company officer with more specific title

8.40 Difficulties in clearly delineating the parameters of a company officer's implied authority may be in some circumstances ameliorated, but in others magnified, where he or she is accorded a specific job title. Where that title itself provides a reasonable indication of his or her job responsibilities, with this can come an equivalent indication of his or her potential authority, a point that is also of considerable importance in the context of his or her ostensible authority.173. As different organisations may adopt different job titles for similar responsibilities, and as even the use of the same job title does not automatically translate to the same job from organisation to organisation, it cannot be assumed that titles of themselves are necessarily determinative of the scope of implied authority. Ultimately the court faced with determining the scope of that authority must take into account not only the title, but the size and structure of the organisation. In NCR Australia Pty Ltd v Credit Connection Pty Ltd (in liq),174. for example, an issue was whether the plaintiff's

Page 186 ‘national credit manager’ had implied authority to bind the plaintiff to engage a mercantile agent. In ruling that the manager lacked that authority, Austin J reasoned as follows:175. The expression ‘national credit manager’ (in such a context as the present) signifies, in my opinion, that the holder of the office has authority to manage the company's accounts receivable function and to that extent, the credit extended to the company's debtors, and to pursue recovery from debtors who exceed available credit terms. There is implied authority, accordingly, to make demands for payment and probably also to enter into arrangements on the company's behalf for deferral of payment or payment by instalments, and also to instruct a mercantile agent to pursue recovery of particular accounts under pre-existing arrangements between the company and that agent. The holding of the office, taken in isolation, does not imply any authority to commit the company to the institution of legal proceedings without reference to internal authority procedures, nor any authority to bind the company to a formal written agreement or deed with a supplier of services such as a debt collection agency.

In so concluding, his Honour noted that the large size of the plaintiff company made it reasonable to assume that it would have procedures in place for proper authorisation of agreements such as the deeds under which the mercantile agent was appointed.176.

173.See 20.19, 20.20. 174.[2004] NSWSC 1; BC200400104

.

175.NCR Australia Pty Ltd v Credit Connection Pty Ltd (in liq) [2004] NSWSC 1; BC200400104

at [135].

176.NCR Australia Pty Ltd v Credit Connection Pty Ltd (in liq) [2004] NSWSC 1; BC200400104 explained why the manager lacked ostensible authority to do the same: see 20.20.

at [137]. This also

De facto managing director or controller — implied actual authority by acquiescence or conduct

Page 15 of 17 Illustrations of Agents' Implied Authority

8.41 A person may be vested with implied authority to perform a particular role or function in the management of a company even though he or she has never been formally appointed to that position. This type of case is a step removed from the above examples because it requires the additional step of determining, in the absence of any express appointment of a person, the extent of authority assumed to have been vested in that person by reason of the assumption of the role with the company's acquiescence. A typical example is where a director, though not formally appointed as such, acts as a de facto managing director with the consent of the board. This situation may be described as implied actual authority by acquiescence.

8.42 The leading case is the English Court of Appeal's decision in Hely-Hutchinson v Brayhead Ltd.177. The case shows that a director might not be formally appointed by resolution of the board to act on the company's behalf for a particular purpose, but may assume that role without dissent from the persons who customarily run the company even to the extent of assuming the role of managing director. The case involved the chairman (R) of the respondent company who, with the knowledge and assent of the company's board, acted as the company's de facto managing director. The evidence revealed that R often committed the company to contracts without the knowledge of the board and reported the matter to the board afterwards. This led the court to conclude that R had implied authority to contract on behalf of the company with another director, the terms of which indemnified the latter against liability for a personal guarantee on a loan given by the latter to a company in which R was investing company funds.178. Importantly, as Lord Denning MR observed, R had no express authority to enter into those contracts, nor did he have any authority implied from the nature of his office (as noted earlier,179. the office of chairperson does not in itself carry with it authority to enter into contracts without the sanction of the board) but had authority implied from the conduct of the parties and the

Page 187 circumstances of the case in assuming the role of de facto managing director of the company.180. In other words, the implied authority stemmed from a course of dealing in which R entered into contracts on behalf of the company without its prior knowledge.181. Young J stated the relevant law concisely in Corporate Affairs Commission (NSW) v Transphere Pty Ltd (No 2):182. … the rule of company law in respect of all companies is that there is a wide authority to make trading commitments for the company in its ordinary officers or even de facto officers and that such contractual authority may be assumed from the mere fact that the de facto officer purports to make the contract in circumstances where it would be within the ordinary scope of the duties of such an officer.

This principle has been the subject of repeated application by Australian courts,183. and it can be said that there is now a general acceptance in Australia that authority may be implied from the conduct of the parties, and in particular from a principal's acquiescence.184.

177.[1968] 1 QB 549

. See also the dicta of Diplock LJ in the earlier case of Freeman and Lockyer (a firm) v

Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 at 501 (a case also involving the authority of a director not formally appointed as managing director, but which was ultimately decided on the grounds of ostensible authority: see 20.26). 178.Hely-Hutchinson v Brayhead Ltd [1968] 1 QB 549 Wilberforce, at 592–4 per Lord Pearson.

at 584–6 per Lord Denning MR, at 587–8 per Lord

Page 16 of 17 Illustrations of Agents' Implied Authority 179.See 8.34. 180.Hely-Hutchinson v Brayhead Ltd [1968] 1 QB 549

at 584.

181.Equiticorp Finance Ltd (in liq) v Bank of New Zealand (1993) 32 NSWLR 50 182.(1985) 9 ACLR 1005 at 1009

at 133–4 per Clarke and Cripps JJA.

.

183.See, for example, Corporate Affairs Commission (NSW) v Transphere Pty Ltd (No 2) (1985) 9 ACLR 1005 (where acquiescence by the company board was established); Brick and Pipe Industries Ltd v Occidental Life Nominees Pty Ltd [1992] 2 VR 279 (where it was held that a director who assumed the role of managing director with the acquiescence of the board had actual authority to manage the business of the company); Equiticorp Financial Services Ltd v Equiticorp Financial Services Ltd (1992) 29 NSWLR 260

(affd Equiticorp Finance Ltd (in liq) v Bank of New

Zealand (1993) 32 NSWLR 50 ) (chairman and chief executive of a group of companies held to have implied authority to make decisions concerning the use of a company liquidity reserve towards the repayment of funds owed to a bank); Belven Enterprises Pty Ltd v Lydham Pty Ltd (1996) 133 FLR 24; BC9603581 ; Cambridge Gulf Holdings NL v CLC Corporation (FC(FCA), Foster, Lee and Nicholson JJ, 28 August 1998, unreported) BC9804368 (executive chairman (C) held to have implied authority to enter into an agreement on behalf of appellant company in view of evidence that the board was prepared to give him a free hand in matters of this kind, C having on previous occasions entered into important agreements on behalf of the company without prior board authorisation). 184.CLC Corporation v Cambridge Gulf Holdings NL (1997) 25 ACSR 296 at 323; BC9705523 per Carr J (affd Cambridge Gulf Holdings NL v CLC Corporation (FC(FCA), Foster, Lee and Nicholson JJ, 28 August 1998, unreported) BC9804368).

8.43 Not all attempts to rely on authority by acquiescence have succeeded, though. Failures occur most often because of a lack of evidence from which to infer acquiescence. An example is Perkins v National Australia Bank.185. There S and G were the directors of Sparrow Green Pty Ltd (SG). In June 1997 S agreed to step aside from the management of SG, and subsequently resigned as a director in February 1998. G was solely responsible for the management of SG from June 1997 onwards and in September and October 1997 executed a number of documents relating to a lending facility provided to SG by the defendant bank. SG eventually went into liquidation and the liquidator argued that the two security documents were invalidly executed. Although G purported to act as managing director when signing the documents, he had not formally been appointed by the board to that position. Debelle J rejected the bank's contention that G had actual authority to execute the two security documents, ruling that G had neither express nor implied actual authority to bind SG in that manner. In a ruling subsequently affirmed by the Full Court of the Supreme Court of South Australia,186. his Honour explained:187. If [G] were to have actual authority to bind the company in this transaction, he would have to find that authority in the constitution of the company or in some antecedent act, such as a resolution of the board which bound the company.It is apparent that [G] did not have any authority under the memorandum and articles of association of the company which vested the management and

Page 188 control of the business of the company in a minimum of two directors … There was no resolution either appointing [G] managing director or vesting any authority in him to manage and control the company. [G], therefore, did not have actual authority to bind the company … [T]here is no evidence of [S's] views on the matter. It cannot be assumed that he believed that [G] would be the sole director, particularly given the fact that [G's wife] later became a director and the articles were not changed to permit a single director to manage and control the company … Furthermore, there is no evidence that [S] was aware of these lending arrangements. More importantly, although the bank might have known that [G]was the sole director and was directing and controlling the company, it always knew that the articles required two directors and it had no document showing that [G] had authority to act as a sole director. For some reason, which is not at all clear, it was prepared to permit [G] to affix the common seal to the documents when it knew he was doing so in a way unauthorised by

Page 17 of 17 Illustrations of Agents' Implied Authority the constitution of the company.

185.(1999) 30 ACSR 256; [1999] SASC 39; BC9900286 . See also State Bank of Victoria v Parry (1990) 2 ACSR 15 (no implied authority in chairman and chief executive to give a guarantee to a bank in respect of a facility provided to another company); Re Tummon Investments Pty Ltd (in liq) (1993) 11 ACSR 637 at 639–40; BC9303046 per Ryan J (who found insufficient evidence from which to infer that a company director was authorised by the acquiescence of the board to borrow funds on behalf of the company). 186.Reported as Perkins v National Australia Bank (1999) 74 SASR 68; [1999] SASC 280; BC9905106 187.Perkins v National Australia Bank (1999) 30 ACSR 256; [1999] SASC 39; BC9900286

.

at [21], [24].

8.44 It is essential to proof of implied authority by acquiescence that the persons alleged to have conferred the implied authority through their acquiescence have the authority to do so in the first place. In Royal British Bank v Turquand,188. for example, the directors were not by the terms of the company's constitution authorised to act without the prior consent of the members and, as such, they could not validly confer power on an agent to act on the company's behalf.By contrast, where a company's constitution allows its directors to appoint a managing director with wide-ranging powers, the fact that the board does not formally do so via a resolution at a board meeting does not mean that the board is deprived of the power to do so informally. What is essential is that the board specifically considered the appointment of a person to exercise the powers of a managing director and communicated its decision to that person.

188.(1856) 6 El & Bl 327; 119 ER 886.

Insurance brokers' implied authority to issue cover notes

8.45 A broker in non-marine insurance has implied authority to issue on behalf of the insurer, or enter into as agent for the insurer, contracts of interim insurance, which are normally recorded in cover notes.189. This is grounded in business efficacy, in that it is a daily occurrence that persons wishing to become insured, or wishing to transfer insurance, contact their brokers and ask for cover, ask for fresh cover, or ask to transfer the cover from an existing item to another. On every such occasion the insured relies upon the broker's statement that the insured is covered as constituting a contract binding upon the insurance company.190.

189.Stockton v Mason [1978] 2 Lloyd's Rep 430 at 431 per Lord Diplock, cited with approval by Clarke J in Kyles Transport Pty Ltd v Zurich Australian Insurance Ltd (1984) 3 ANZ Ins Cas ¶60-600 at 78,640. 190.Stockton v Mason [1978] 2 Lloyd's Rep 430 at 432 per Lord Diplock.

End of Document

Proscription Against Delegation Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 9: Non-delegation > Chapter 9 Non-delegation Page 189

Chapter 9 Non-delegation [Current to September 2013] Please click on the link below to download the entire chapter. Proscription Against Delegation

9.1

Authority to Delegate

9.2

Express authority to delegate

9.2

Implied authority to delegate

9.3

Onus of proof

9.6

Effect of Valid Delegation

9.7

Relationship between agent and principal

9.8

Relationship between principal and sub-agent

9.9

Contractual claims

9.10

Tort claims

9.13

Equitable claims

9.16

Ministerial Acts

9.19

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9.1 As a general rule, in contracts of agency the maxim delegatus non potest delegare applies:1. meaning that a delegated power may not be delegated.2. Under this maxim, an agent cannot delegate his or her authority to another person (‘sub-agent’), and so cannot establish a relationship of principal and agent between his or her own principal and a third person.3. As the agent cannot appoint a sub-agent, the principal will not be bound by the act or contract of a

Page 190 sub-agent unless the principal ratifies that act or contract.4. The rationale for this rule is that, where the personal skill of an agent is essential, or there is a confidence, trust or discretionary power reposed in the agent, by granting

Page 2 of 2 Proscription Against Delegation the agent authority the principal countenances that the agent will, in exercising that authority, not delegate it to another person.5. In the well known words of Thesiger LJ in De Bussche v Alt:6. [T]his maxim when analyzed merely imports that an agent cannot … devolve upon another obligations to the principal which he has himself undertaken to personally fulfil; and that, inasmuch as confidence in the particular person employed is at the root of the contract of agency, such authority cannot be implied as an ordinary incident in the contract.

Delegation is, however, permitted where this is prescribed by the express or implied terms of the agency agreement,7. or where that which is delegated is a mere ministerial act or function.8.

1.

S A Joseph and Rickard Ltd v Lindley (1906) 3 CLR 280 at 290; BC0500017

2.

The application of this maxim is not limited to agents, but extends both to decision makers in administrative law and to persons to whom legislative power has been delegated: see W B Lane and S Young, Administrative Law in Australia, Lawbook Co, Sydney, 2007, pp 139–43.

3.

De Bussche v Alt (1878) 8 Ch D 286

at 310

per Griffith CJ.

per Thesiger LJ (CA); John McCann & Co (a firm) v Pow [1975]

1 All ER 129 at 131 per Lord Denning MR. See also, in the context of powers of attorney: Powers of Attorney Act 2003 (NSW) s 45 (which prohibits an attorney from, whether or not irrevocably, appointing a substitute, delegate or subattorney unless the instrument creating the power expressly provides for the attorney to do so); Powers of Attorney Act 2000 (Tas) s 32(2) (a donee of an enduring power of attorney is not competent to appoint another person to perform any of his or her functions or exercise any of his or her powers in his or her capacity as such); Instruments Act 1958 (Vic) s 107(1) (a general power of attorney does not authorise the attorney to delegate his or her own powers under the power of attorney). Contra Powers of Attorney Act 2006 (ACT) s 33(1) (which ousts the general law vis-Ã -vis general powers of attorney, by entitling an attorney under such a power to authorise someone else — as a substitute decisionmaker, delegate or sub-attorney — to exercise all or any of the attorney's powers, even without an express power to do so in the power of attorney instrument). 4.

Ratification of the delegation need not be express, and may be evident from the conduct of the principal with the requisite knowledge: De Bussche v Alt (1878) 8 Ch D 286 doctrine of ratification see Ch 5.

5.

at 310–11

St Margaret, Rochester Burial Board v Thompson (1871) LR 6 CP 445 Europa Poster Services Ltd [1968]1 All ER 826 at 832

6.

(1878) 8 Ch D 286

7.

See 9.2–9.6.

8.

See 9.19–9.22.

End of Document

at 310

.

per Buckley J.

at 457–8

per Thesiger LJ (CA). As to the per Willes J; Allam & Co Ltd v

Authority to Delegate Law of Agency 3ed 2013 (book)

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Authority to Delegate Please click on the link below to download the entire chapter.

Express authority to delegate

9.2 The delegatus non potest delegare maxim does not operate where the principal has authorised the agent to engage a delegate to perform certain functions.9. The clearest case is where the agency agreement itself expressly makes such a provision, and thereby prescribes the boundaries of the agent's authority to delegate. So if the agency agreement creates a power in the agent to appoint a sub-agent, the maxim has no application.10. Nor does the nondelegation rule apply if statute expressly confers upon the agent the authority to delegate.11.

9.

Allam & Co Ltd v Europa Poster Services Ltd [1968] 1 All ER 826 at 832

per Buckley J.

10. See, for example, S A Joseph and Rickard Ltd v Lindley (1906) 3 CLR 280; BC0500017 (where the agency contract permitted delegation of executive and financial work to a firm approved by the agents, Griffith CJ ruled that the contract authorised the agents to delegate certain of their duties as agents, which delegation was done with the approval of the principals: at 291). 11. See, for example, Corporations Act 2001 (Cth) s 916B(3); Powers of Attorney Act 2006 (ACT) s 33(1); Land and Business (Sale and Conveyancing) Act 1994 (SA) s 37.

Implied authority to delegate

9.3 Even in the absence of express or statutory authority, an agent may validly delegate in certain circumstances. These were again explained by Thesiger LJ in the leading case of De Bussche v Alt:12. [T]he exigencies of business do from time to time render necessary the carrying out of the instructions of a principal by a person other than the agent originally instructed for the purpose, and where this is the case, the reason of the thing requires that the rule should be relaxed, so as … to enable the agent to appoint what has been termed ‘a sub-agent’ or ‘substitute’ (the latter of which designations, although it does not exactly denote the legal relationship of the parties, we adopt for want of a better, and for the sake of brevity) … And we are of the opinion that an authority to the effect referred to may and should be implied where, from the conduct of the parties to the original contract of agency, the usage of trade, or the nature of the particular business which is the subject of the agency, it may reasonably be presumed that the parties to the contract of agency originally

Page 191

Page 2 of 4 Authority to Delegate

intended that such authority should exist, or where, in the course of the employment, unforeseen emergencies arise which impose upon the agent the necessity of employing a substitute …

As explained by his Lordship, it is possible to imply an authority in an agent to delegate if this is consistent with what the court ascertains the principal intended in the circumstances. This presumed intention can be derived from the conduct of the parties, trade usage or custom,13. or the nature of the business the subject of the agency. It may also be presumed in the extraordinary case where delegation is required for reasons of necessity. The vehicle through which this intention is translated is apparently contractual implication, giving effect to the presumed intention of the parties on the grounds of business efficacy.

12. (1878) 8 Ch D 286 232; 14 ER 899.

at 310–11

(CA).See also Quebec & Richmond Railway Co v Quinn (1858) 12 Moo PC

13. For example, it is customary for a country solicitor to engage a city agent, or a solicitor in one jurisdiction to engage a solicitor in another jurisdiction, in each case because the retainer involves a matter geographically outside of the solicitor's practice: Griffiths v Williams (1787) 1 Term Rep 710; 99 ER 1335; Solley v Wood (1852) 16 Beav 370; 51 ER 821; Re Newen [1903] 1 Ch 812 .In practice, however, the client will have expressly or impliedly conferred upon the solicitor the requisite authority to appoint a sub-agent outside the jurisdiction, if for no other reason than the nature of the matter. The case is different where there is no justification for engaging another solicitor, in which full disclosure to, and assent of, the client is necessary: see Re Becket [1918]2 Ch 72 at 80–1 per Swinfen Eady LJ, with whom Bankes LJ and Neville J agreed.

9.4 In De Bussche v Alt a shipowner employed an agent for the purpose of effectuating a sale of a ship at any port where the ship may from time to time in the course of its employment under charter happen to be. The English Court of Appeal viewed this type of case as preeminently one in which the appointment of substitutes at ports other than those where the agent carries on business is necessary, ‘and must reasonably be presumed to be in the contemplation of the parties’.14. De Bussche v Alt can be contrasted with John McCann & Co (a firm) v Pow,15. where an agent instructed to find a purchaser for his principal's property, not expressly authorised to appoint subagents, gave particulars of the property to another firm of estate agents. The latter introduced the purchaser and the issue was whether the agent had implied authority to appoint the other firm as sub-agents. Lord Denning MR found no such authority, reasoning as follows:16. It seems to me that an estate agent, and certainly one who claims to be a sole agent, has no implied authority to appoint a sub-agent. The reason is because an estate agent holds a position of discretion and trust. It is his duty, certainly in the case of a sole agent, to use his best endeavours to sell the property at an acceptable price to a purchaser who is satisfactory and who is ready and willing and able to purchase the property. It is his duty also to take care to prepare particulars of the property accurately, and to make no misrepresentation about it. It is his duty to receive applications, to make appointments to view, and to negotiate the best price that can be obtained in the circumstances. Furthermore, he is at liberty in the course of the negotiations to receive a deposit as stakeholder, but not as agent for the vendor. Those functions and duties of an estate agent, certainly of a sole agent, require personal skill and competence. So much so that I think an estate agent has no authority to delegate his responsibilities to a sub-agent, unless he is expressly authorised to do so.

14. De Bussche v Alt (1878) 8 Ch D 286

at 311

per Thesiger LJ (CA).

Page 3 of 4 Authority to Delegate 15. [1975] 1 All ER 129

.

16. John McCann & Co (a firm) v Pow [1975] 1 All ER 129 at 131–2

.

9.5 Hence, in the absence of an express authority to delegate, and lacking grounds on which to presume that the principal intended otherwise, an agent engaged to perform a service involving personal skill and judgment has no implied authority to delegate its performance. However, a principal may be taken to have assented to the agent employing a sub-agent if the circumstances make it appropriate to appoint a sub-agent and the principal, knowing of the appointment, does not object to it. Mathew LJ explained this point in Powell & Thomas v Evan Jones & Co:17. It frequently happens in matters of business of this kind that an agent, who is employed to render services for a principal, finds that he is not in a position to render those services himself, and, with the knowledge of his principal, he applies to another person, who may have greater facilities

Page 192 for carrying the transaction through. I think that the ordinary course of business in such a case as this is that the lastmentioned person takes the position of agent to the principal. It would be difficult in such cases to suppose that the principal would assent to the conduct of the business in which he was interested being transferred to a person who did not in carrying it out undertake the obligations of an agent towards him. As a matter of sound business it would generally be necessary that such should be the relation.

17. [1905] 1 KB 11

at 22

.

Onus of proof

9.6 The person alleging that the delegation was authorised bears the onus of proving the allegation. Depending on the circumstances, either the principal or the agent may have a motivation to argue that the agent was authorised to delegate to a sub-agent. For instance, if the sub-agent has performed the service on which the agent's entitlement to remuneration rests, the agent's claim to remuneration depends on proof by the agent that the authority in question was properly delegated to the sub-agent.18. Alternatively, it may be the principal who contends that he or she authorised the delegation, so that the principal may be able to commence proceedings against the sub-agent for the latter's default. For example, in Powell& Thomas v Evan Jones & Co19. agents were employed for commission to procure an advance of money for their principals, and with the principals' assent employed a subagent on the footing that the sub-agent would share the commission with them. The sub-agent succeeded in procuring the advance but, without the agents' or principals' knowledge, received a commission from the supplier of the funds. The sub-agent was held to owe fiduciary duties to the principals and for this reason was made accountable to them for the secret commission.20.

Page 4 of 4 Authority to Delegate 18. See John McCann & Co (a firm) v Pow [1975] 1 All ER 129 , discussed at 9.4, where it was held that there had been no proper delegation, and so the agent was denied commission on the sale of the principal's property by a person to whom the agent had delegated that function. 19. [1905] 1 KB 11

.

20. As to accountability of agents for secret commissions generally see 12.7–12.11.

End of Document

Effect of Valid Delegation Law of Agency 3ed 2013 (book)

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9.7 Before considering the legal effects of a purported delegation, it must first be determined that a delegation has in fact been intended. It may, for instance, be that what appears to constitute an intention to authorise an agent to delegate to a sub-agent is instead the appointment of a co-agent.21. In the latter case, the agents in question share a common principal, and thus have a direct agency relationship with that principal. Where the evidence reveals an intention whereby a principal authorises an agent to appoint another agent who will have the same relation to the principal as if directly appointed by the principal, the scenario is closer to one of co-agency than sub-agency. Where a true sub-agency is intended, the sub-agent is essentially a step removed from the principal, and so descriptions of the sub-agent as an agent of two principals22. should not be read as equating the relationship between sub-agent and principal to that of agent and principal.

21. As to co-agents see 4.32–4.35. 22. As in W A Seavey, ‘Subagents and Subservants’ (1955) 68 Harv L Rev 658 at 660; Restatement (3d) §3.15, Comment b.

Relationship between agent and principal

9.8 In line with a fundamental tenet of agency law, if an agent without authority delegates the performance of the agency, or part of it, to a third party, the agent is personally liable to the principal for any loss stemming therefrom,23. and the principal is not bound to third parties

Page 193 by the sub-agent's acts24. except to the extent that the principal has ‘held out’ the sub-agent as being authorised25. or has ratified the unauthorised delegation.26. Where the principal has authorised the agent to delegate, the principal is, again in accord with basic agency law, liable for the sub-agent's acts and omissions as if the sub-agent had been appointed as agent by the principal.27. The reason for this is not that the sub-agent is the principal's agent but rather ‘that he is bound by the act of his own agent, who, in this instance, is (properly) doing the act through the sub-agent’.28. Relief for the principal may be found in a claim against his or her agent. This is because an agent who validly delegates the agency, or who appoints another person to perform a ministerial task, remains liable to the principal for the delegate's acts, omissions and defaults.29.

Page 2 of 7 Effect of Valid Delegation 23. Christie v McCann (1972) 27 DLR (3d) 544 at 547

per Evans JA (CA(Ont)).

24. Wray v Kemp (1884) 26 Ch D 169 ; Dunlop & Sons v De Murrietta & Co (1886) 3 TLR 166; Re Becket [1918] 2 Ch 72 at 80–1 per Swinfen Eady LJ, with whom Bankes LJ and Neville J agreed. 25. In which case the sub-agent has ostensible authority to bind the principal: see Ch 20. 26. Keay v Fenwick (1876) 1 CPD 745; Dew v Metropolitan Railway Co (1885) 1 TLR 358. As to ratification generally see Ch 5. 27. As to the liability of principals for the acts and omissions of their agents see generally Pt VI. 28. P Mechem, Outlines of Agency, 4th ed, Callaghan, Chicago, 1952, p 51. 29. This is reflected, for example, in the Estate Agents Act 1980 (Vic) s 13A, which provides that, if an estate agent employs an agent's representative, the estate agent is responsible, in tort and in contract, for anything done or not done by the agent's representative: (a) within the scope of the agent's representative's authority; or (b) for the benefit, or the purported or intended benefit, of the estate agent or the estate agent's business.

Relationship between principal and sub-agent

9.9 There remain the issues, discussed below, as to whether the principal has any cause of action against the subagent, and whether the sub-agent has any rights against the principal.

Contractual claims

9.10 The balance of case authority dictates that delegation to a sub-agent does not create privity between the sub-agent and the principal; no contractual relationship exists between them.30. Regarding claims in contract, therefore, the principal's claim is against the agent, not the sub-agent.31. The agent can in turn sue the sub-agent. For example, as a general rule, if a principal authorises an agent to appoint a sub-agent to collect moneys due to the principal, the principal cannot require the sub-agent, but only the agent, to account for those moneys.32. For the same reason, a sub-agent must ordinarily look to the agent for remuneration33. and indemnity,34. not to the principal.35. The rationale for denying privity in this context was explained by Rix J in Prentis Donegan & Partners Ltd v Leeds & Leeds Co:36. There are good commercial reasons for such a rule. It emphasizes the importance of the contractual chain. It is natural for each agent in the chain to give credit to the party known to him, rather than to someone perhaps unknown. It reflects an agent's general desire to keep his client to himself. It reflects the professional or semi-professional relationships of agents and sub-agents.

Page 194

30. Robbins v Fennell (1847) 11 QB 248

; 116 ER 468; New Zealand and Australia Land Company v Watson (1881) 7

QBD 374 at 380 per Bramwell LJ; Montagu v Forwood [1893] 2 QB 350 at 355–6 per Bowen LJ; Calico Printers' Association v Barclays Bank (1931) 145 LT 51 at 55 per Wright J; Brundza v Robbie & Co (1952) 86 CLR 345 at 353–4; BC5200430 per Dixon CJ, McTiernan and Fullagar JJ; Prentis Donegan & Partners Ltd v Leeds & Leeds Co [1998] 2 Lloyd's Rep 326 at 330–2 per Rix J.

Page 3 of 7 Effect of Valid Delegation 31. Mackersy v Ramsays, Bonar & Co (1843) 9 Cl & F 818 at 845; 8 ER 628 at 638 per Lord Campbell; Swire v Francis (1877) 3 App Cas 106

; Balsamo v Medici [1984] 2 All ER 304 (action in contract not tort).

32. Stephens v Badcock (1832) 3 B & Ad 354; 110 ER 133; Sims v Brittain (1832) 4 B & Ad 375; 110 ER 496. This assumption has been forcefully and persuasively challenged in A Tettenborn, ‘Principals, Sub-Agents and Accountability’ (1999) 115 LQR 655. 33. Schmaling v Tomlinson (1815) 6 Taunt 147; 128 ER 989. As to agents' remuneration see Chs 15–17. 34. As to an agent's right to indemnity see 18.8–18.20. 35. Cull v Backhouse (1795) 6 Taunt 148; 128 ER 990; Solly v Rathbone (1814) 2 M & S 298; 105 ER 392; Mason v Clifton (1863) 3 F & F 899; 176 ER 408. 36. [1998] 2 Lloyd's Rep 326 at 334.

9.11 The main authority to the contrary is the 1878 judgment of the English Court of Appeal in De Bussche v Alt,37. where the court stated the law in terms, apparently unqualified, that where an agent who is authorised to delegate to a sub-agent duly exercises the delegation, privity of contract arises between the principal and the sub-agent. Yet subsequent case law treats De Bussche v Alt as the exception — Rix J in Prentis describing it as ‘a narrow one’38. — to the general rule stated above. It may apply where the principal authorises the agent to create privity of contract between the principal and the sub-agent.39. Such cases appear to rest on whether the principal can be said to have intended that the sub-agent's appointment would amount to a substitution of the original principal and agent relationship (the agent becoming functus officio) or instead leave it unchanged.40. Not all find this compelling. The leading English agency work states that ‘the very fact that such a sub-agent binds the principal when acting in connection with the principal's affairs shows that he is to be regarded as an agent of the principal, and that he should be also directly liable to the principal’,41. a view that has attracted at least one other eminent academic adherent.42. Yet English common law remains largely unwavering in denying privity in this context. A comprehensive illustration is found in Prentis Donegan & Partners Ltd v Leeds & Leeds Co,43. noted above, although its facts made the contention in favour of privity difficult to maintain. The evidence showed that the sub-agents looked to the agents for payment, and that the agents recognised that obligation, and looked in turn to the principal for their payment. The facts revealed no direct contact between the principal and the sub-agents. And the terms on which the sub-agents dealt with the agents differed from those on which the agents dealt with the principal. This led Rix J to conclude that there had been no complete delegation by the agents to the sub-agents of their responsibilities to the principal; the sub-agents were not the agents' ‘substitute’.44. In so ruling, his Lordship opined that the willingness of the law to countenance a cause of action in tort by principal against sub-agent, independent of contract, makes it easier, not more difficult, to maintain the classical position of absence of direct privity in contract.45.

37. (1878) 8 Ch D 286

at 310–11

per Thesiger LJ (CA).

38. Prentis Donegan & Partners Ltd v Leeds & Leeds Co [1998] 2 Lloyd’s Rep 326 at 332. 39. Calico Printers' Association v Barclays Bank (1931) 145 LT 51 at 55 per Wright J. 40. Stoljar, p 279; Powell, p 308 (who describes such an instance as ‘a true case of delegation’). 41. Bowstead, p 167. 42. See A Tettenborn, ‘Principals, Sub-Agents and Accountability’ (1999) 115 LQR 655 (cf at 669–77 as to the commonly raised arguments against abrogating privity in this context). 43. [1998] 2 Lloyd’s Rep 326. 44. Prentis Donegan & Partners Ltd v Leeds & Leeds Co [1998] 2 Lloyd’s Rep 326 at 333. 45. See 9.13–9.15.

Page 4 of 7 Effect of Valid Delegation

9.12 The point is also important from the perspective of the agent's insolvency. Assuming that the sub-agent has collected moneys for the agent on the principal's behalf, should the agent become insolvent, lacking a direct right against the sub-agent, the principal ranks as a mere unsecured creditor unless he or she can establish the moneys to be trust moneys.46. Moreover, in that the law has been willing to create exceptions to the strict operation of the doctrine of privity throughout agency law (witness the doctrine of the undisclosed principal47. and to a lesser extent the doctrine of ratification)48. for reasons of commercial expediency, it can be argued that it involves no extension of principle to recognise an exception in this context. Sub-agents may, in any event, claim a right of lien against the principal directly, whether or not the principal is disclosed, where the agent's delegation is exercised pursuant to actual or ostensible authority.49. The reason for this is that the existence of the lien is not dependent

Page 195 upon proof of contract but can be seen as arising by operation of law. In view of authority that the right to indemnity (or reimbursement) may also arise independently of contract,50. it must be queried whether the sub-agent should necessarily be denied a claim of this kind against the principal.

46. Prentis Donegan & Partners Ltd v Leeds & Leeds Co [1998] 2 Lloyd’s Rep 326 at 331. 47. As to the doctrine of the undisclosed principal see 19.28–19.47. 48. As to the doctrine of ratification see Ch 5. 49. See 18.46. 50. Advanced Realty Funding Corp v Bannink (1979) 106 DLR (3d) 137 at 142 per Arnup JA (CA(Ont)). See further 18.9.

Tort claims

9.13 There is authority denying a claim in tort by the principal against the sub-agent, dictating that any claim by the principal for the negligence of the sub-agent must be pursued against the agent, who is liable for the negligence of the sub-agent, not against the sub-agent. In Calico Printers' Association v Barclays Bank Wright J stated what he believed to be the general principle in this regard:51. [W]here a principal employs an agent to carry out a particular employment, the agent undertakes responsibility for the whole transaction, and is responsible for any negligence in carrying it out, even if the negligence be that of the sub-agent properly or necessarily engaged to perform some part, because there is no privity between the principal and the sub-agent.

51. (1931) 145 LT 51 at 55.

Page 5 of 7 Effect of Valid Delegation

9.14 Yet the modern law does not premise liability in tort upon a contractual relationship. Nor is it a prerequisite to the existence of an agency that there be a contractual relationship between the parties.52. Non-parties to a particular contract can nonetheless be liable in negligence to one of the parties, a view supported by Australian courts' willingness to extend the tortious duty of care to third parties to a contractual relationship.53. By parity of reasoning, this view is also consistent with the cases in which a bailor of goods has succeeded in an action against a subbailee in negligence,54. the sub-bailee being characterised as being under a duty to both the bailor and the bailee.

52. As to non-contractual agencies see 4.14–4.20. 53. See 24.17–24.22. 54. Lee Cooper Ltd v C H Jeakins & Sons Ltd [1967] 2 QB 1

; Morris v C W Martin & Sons Ltd [1966] 1 QB 716

; Moukataff v British Overseas Airways Corp [1967] 1 Lloyd’s Rep 396. See further Fridman, pp 169–71.

9.15 It would seem inappropriate if a sub-agent has been negligent to restrict the principal to a claim against the agent, rather than against the sub-agent or both agent and sub-agent jointly, in circumstances where it is reasonably foreseeable that a sub-agent who acts negligently could cause loss to the principal. This is illustrated by W A Coombs Ltd v Walter Brown,55. where a sub-agent, appointed pursuant to the agent's implied authority, and directed to bid at an auction on the principal's behalf, was held liable in tort to the principal for failing to so bid. The result would, however, be otherwise if the sub-agent did not know that the agent in fact acted as an agent for a principal, but reasonably assumed the agent to be acting as a principal,56. or where the terms of the sub-agency excluded liability in tort between the sub-agent and the principal.57. Moreover, in that the principal is liable for the sub-agent's acts and omissions as if the sub-agent had been appointed as agent by the principal, it appears unfair to deny the principal the option to claim against the sub-agent for the latter's default. English courts, no doubt informed by concerns of this kind, have shown a willingness to apply tortious principle in the sub-agency environment, at least where there is a sufficient assumption of responsibility by the sub-agent.This is illustrated by the decision of Colman J in BP plc v AON Ltd,58. which highlights a further reason why proceeding in tort as opposed to contract may be

Page 196 necessary. The plaintiff (BP) was the insured under an all risks open cover policy placed by AON (Texas) as broker, which required a declaration of each risk individually before it was covered. AON (London) assumed the role of making declarations for this purpose, but incorrectly believed that declarations were required only to the leading underwriter on the open cover, not to each of the other underwriters. The latter led to a refusal to pay BP's claims relating to various declarations, which in turn led BP to sue AON (London) for its loss, as no claim against AON (Texas) was available because the court lacked jurisdiction over it. BP argued that AON London — as sub-broker responsible for the declarations — owed it a tortious duty of care. The relevant inquiry, according to Colman J, was whether there had been an undertaking of responsibility by AON London with regard to the proper conduct of the services in question.59. In finding that there had indeed been such an undertaking, his Lordship made the following remarks:60. There was adopted such a close relationship between AON London and BP involving repeated direct contact between them that the substance of AON's representation to BP was that AON London was to perform such a crucial function in the process of effecting valid cover that in spite of the initial undertaking of AON Texas to effect cover, AON London was independently to be responsible for obtaining that cover. For this purpose it is clearly not necessary that there should have been express words to the effect that BP would have a right of action against AON London. It would be enough if BP were

Page 6 of 7 Effect of Valid Delegation entitled to infer from what was said and done that AON London was to provide its professional services with regard to declarations and that, independently of AON Texas or any other AON entity, it could be relied upon by BP as undertaking responsibility to provide those services in accordance with the proper professional standards of an insurance broker on the London and European markets including Lloyd's.

As AON London undertook responsibility to BP to provide services of a broker with proper professional skill and care, and BP relied on that undertaking, failure to secure complete cover for each notified project amounted to a breach of AON London's professional duty of care in tort.61.

55. [1940] SASR 211 . See also Cheshire & Co v Vaughan Bros & Co [1920] 3 KB 240 at 259 per Atkin LJ, who envisaged that there may be circumstances where an agent is not responsible to the principal for the negligence of a sub-agent if the agent used reasonable care in the selection of the sub-agent. Cf Balsamo v Medici [1984] 2 All ER 304 at 311–12 per Walton J. 56. Montagu v Forwood [1893] 2 QB 350

.

57. See, for example, MacMillan v A W Knott Becker Scott Ltd [1990] 1 Lloyd’s Rep 98, discussed at 24.20. 58. [2006] 1 All ER (Comm) 789; [2006] EWHC 424 (Comm)

.

59. BP plc v AON Ltd [2006] 1 All ER (Comm) 789; [2006] EWHC 424 (Comm) at [180]

.

60. BP plc v AON Ltd [2006] 1 All ER (Comm) 789; [2006] EWHC 424 (Comm) at [181]

.

61. BP plc v AON Ltd [2006] 1 All ER (Comm) 789; [2006] EWHC 424 (Comm) at [225]

.

Equitable claims

9.16 The above logic dictates that neither should sub-agents necessarily be absolved of fiduciary responsibility to the principal.62. As the principal has authorised the appointment of a sub-agent, it is appropriate to assume that the principal can reasonably expect both agent and sub-agent to act in the principal's interests and not their own interests or the interests of others.63. This is illustrated by De Bussche v Alt.64. As noted earlier,65. the court found that the agent employed to sell the principal's ship was authorised to appoint a sub-agent for this purpose. The subagent, without the knowledge of the principal, purchased the ship himself and resold it at a profit.The English Court of Appeal held the sub-agent liable to account to the principal for this profit on the ground that it was derived in breach of fiduciary duty. Though the court rested its conclusion on the finding of a contractual relationship between

Page 197 the principal and sub-agent,66. the existence of such a contract cannot be seen as indispensable to the existence of a fiduciary duty owed by agent to principal.67.

62. As to agents' fiduciary duties see 10.6–10.16, 12.2–12.55. 63. United States v Schwab, 88 F Supp 2d 1275 at 1286–7 (2000, D Wyo); Daraydan Holdings Ltd v Solland International Ltd [2005] Ch 119 64. (1878) 8 Ch D 286 65. See 9.4.

; [2004] EWHC 622 (Ch) at [52] .

per Lawrence Collins J.

Page 7 of 7 Effect of Valid Delegation 66. The court appeared to assume that sub-agents are automatically in a contractual relationship with the principal, so as to make the sub-agent as responsible to the principal for the due discharge of contractual duties which the employment casts upon the sub-agent, as if he or she had been appointed agent directly by the principal: De Bussche v Alt (1878) 8 Ch D 286 at 310–11 per Thesiger LJ (CA). That privity of contract cannot be so assumed is clear from subsequent authorities. However, in that a contract is not necessary to establish agency duties and rights, De Bussche v Alt should be seen as illustrating the application of fiduciary duties to sub-agents. 67. This appears to have been assumed in Calico Printers' Association v Barclays Bank (1931) 145 LT 51 at 56 per Wright J. See also Powell & Thomas v Evan Jones & Co [1905] 1 KB 11

, discussed at 9.6.

9.17 In any event, the sub-agent could alternatively be made liable on the grounds of recipient or accessory liability.68. This can arguably be maintained even if the agent acts for an undisclosed principal, at least in the case where there is a fiduciary relationship between agent and sub-agent. In such a situation the rationale for the doctrine of an undisclosed principa 69. may justify the principal's entitlement to sue the sub-agent. Moreover, it cannot be assumed that the principal will be able to recover from the agent for a sub-agent's fiduciary breach. This is because fiduciary duties are not attracted vicariously except to the extent that the defendant (the agent) is an accessory to another person's (the sub-agent's) breach of fiduciary duty.

68. See 24.5, 24.6. 69. As to the doctrine of the undisclosed principal see 19.28–19.47.

9.18 Just as sub-agents may be responsible in a fiduciary capacity to the principal, so may they be responsible for breach of confidence. If a sub-agent discloses or uses information confidential to the principal, the principal may proceed against either the agent or the sub-agent. Assuming that the agency relationship is created by contract, the principal's action against the agent may be based in contract if a term of the contract, whether express or implied, imposes such a duty. Lacking such contractual protection, the principal can proceed against the agent or the subagent in equity pursuant to the doctrine of breach of confidence70. upon proof that confidential information was disclosed or used inconsistently with the purpose of its communication.

70. As to the equitable doctrine of breach of confidence see Dal Pont, Equity and Trusts, Ch 6; Meagher, Gummow and Lehane, Ch 41.

End of Document

Ministerial Acts Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 9: Non-delegation > Chapter 9 Non-delegation

Ministerial Acts Please click on the link below to download the entire chapter.

9.19 Purely ministerial acts fall outside the non-delegation rule. Agents may appoint another person to perform purely ministerial acts because these acts involve no exercise of judgment by the sub-agent — the appointee is simply the agent's instrument in effecting the agent's duty or discretion, not the agent's delegate.71. Expressed another way, the agent is merely selecting ‘the hand of another to carry her intention into effect’.72. Hence, to appoint another person to perform a purely ministerial act involves no delegation, at least in the sense of the latter concept being limited to an attempted divesting of duty, power or discretion. As explained by the New Zealand Court of Appeal in Parkin v Williams:73. [I]f there is an element of discretion or confidence involved the signing will not be a mechanical or ministerial act and other considerations will apply. But if the skill and discretion reposed in the agent has been exercised it is immaterial who performs the necessary mechanical acts needed to implement the agent's decision.

Page 198 The legal justification for this is that the principal cannot be presumed to have intended that the agent necessarily will perform tasks related to the agency personally if those tasks involve the exercise of no actual judgment or discretion by the agent. Again the legal vehicle to give effect to this intention is presumably contractual implication for the purposes of business efficacy or, aside from contract, simply the concept of implied authority.74. To this end, it is inferred that agents can appoint others to perform ministerial acts unless this is inconsistent with the terms of the agency agreement. The same transaction may, moreover, involve elements of both a personal and a ministerial nature, in which case there is no objection to the agent employing another person to effect the purely ministerial part of the transaction, most commonly its completion.75. For the foregoing reason, the performance of ministerial acts by an appointee gives rise to the same rights and liabilities in the principal as in the case of a delegate.76. For example, in W A Coombs Ltd v Walter Brown77. the appellant company instructed one of its directors to purchase an item for it. The director, as agent of the company, engaged another person (B) to bid at auction for the item for a commission. B neglected to bid and the item was sold to another person. The act required of B was held to be purely ministerial: the director fixed the price up to which B was to bid, and all that B was to do was carry out the express instructions given to him. B's task ‘did not involve confidence or discretion’.78. As a result, B was liable in damages to the company (as principal) for the loss caused by his having omitted to bid.

71. Parkin v Williams [1986] 1 NZLR 294 at 300

per Richardson J (CA).

72. Lord v Hall (1849) 8 CB 627 at 631; 137 ER 653 at 654

per Maule J.

Page 2 of 3 Ministerial Acts 73. [1986] 1 NZLR 294 at 300 826 at 832

per Richardson J. See also Allam & Co Ltd v Europa Poster Services Ltd [1968] 1 All ER

per Buckley J.

74. As to the implied authority of agents see Ch 8. 75. Allam & Co Ltd v Europa Poster Services Ltd [1968] 1 All ER 826 at 832

per Buckley J.

76. See 9.9–9.18. 77. [1940] SASR 211

.

78. W A Coombs Ltd v Walter Brown [1940] SASR 211 at 212

per Angas Parsons J.

9.20 A typical ministerial act involves a person signing under the direction of the agent.79. In LEP International Pty Ltd v Atlanttrafic Express Service Inc,80. for instance, a charterparty conferred on the charterer, as agent, the authority to sign bills of lading on behalf of the owner of the ship the subject of the charter. Clarke J ruled that the signature of a bill by the sub-agent of the charterer did not prevent the owner from being bound by the bill because the signature was a purely ministerial act. Similarly, in Parkin v Williams81. the New Zealand Court of Appeal held that there was no reason in principle why a person acting under an agent's direction ought not be able to execute a memorandum satisfying statutory writing requirements, in that such a step is no more than ministerial when all the terms of the contract have been agreed. In so ruling, Richardson J, who delivered the judgment of the court, remarked that whether the actual signing, which does not involve any discretion or confidence, is done by the agent or by a nominee, is a matter of indifference to the principal.82.

79. Brown v Tombs [1891] 1 QB 253

at 255

80. (1987) 10 NSWLR 614 at 617–19

.

81. [1986] 1 NZLR 294

per Grantham J.

.

82. Parkin v Williams [1986] 1 NZLR 294 at 300

.

9.21 Not in every case where an agent is authorised to sign on behalf of the principal can the signing be delegated. Specifically, no delegation is permissible where the agent is authorised to sign for both parties,83. such as in the case of an auctioneer,84. or for the purposes of satisfying the formality requirements of statutory provisions that are modelled on the English Statute of Frauds.85.

83. Peirce v Corf (1874) LR 9 QB 210 J.

at 215

per Blackburn J; Bell v Balls [1897] 1 Ch 663

at 669

per Stirling

84. See 8.19–8.22. 85. Blore v Sutton (1817) 3 Mer 237; 36 ER 91 4.25.

. As to the applicability of these formality requirements to agency see

Page 3 of 3 Ministerial Acts

9.22 However, where the act in question does involve the exercise of discretion, confidence or judgment, it cannot be characterised as a ministerial act, and so can only be delegated pursuant to express or implied authority. An illustration in this context is provided by John McCann & Co (a firm) v Pow,86. discussed earlier.87. It will be recalled that it involved an agent instructed to find a purchaser for a principal's property giving particulars of the property to another firm of estate agents (sub-agents). In support of its argument for commission on the subsequent sale of the property by the latter firm, the agent contended that the sub-agents had been entrusted with a ministerial duty, one merely to pass particulars to potential purchasers, leaving all the negotiations and the like to it. This the English Court of Appeal rejected, ruling instead that the functions expected of the sub-agents were not purely ministerial, for they prepared particulars and had to ensure that those particulars were correct. So in the end, the purchaser was introduced by agents who had no authority, express or implied, to act as sub-agents so as either to bind the vendor or to make the vendor liable to pay commission.88. The result would have been different had the supposed subagents simply acted as a transmitter of information.

Page 200

86. [1975] 1 All ER 129

.

87. See 9.4. 88. John McCann & Co (a firm) v Pow [1975] 1 All ER 129 at 132 LJJ concurred.

End of Document

per Lord Denning MR, with whom Orr and Browne

Contract and Tort Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 10: Sources and Incidents of Duties > Chapter 10 Sources and Incidents of Duties Page 203

Chapter 10 Sources and Incidents of Duties [Current to September 2013] Please click on the link below to download the entire chapter. Contract and Tort

10.1

Contract

10.1

Tort

10.3

Conflation of contract and tort duties

10.5

Fiduciary Law

10.6

Fiduciary duties

10.6

Translation of fiduciary duties to agency

10.9

Illustration — donees of powers of attorney

10.10

Illustration — stockbrokers

10.11

Strictness of fiduciary duties

10.12

Custom and fiduciary duties

10.14

Non-fiduciary agents

10.17

Overlap Between Duties

10.19

Equity and contract/tort

10.19

Contractual exclusion of duties

10.22

Statutory Duties

10.27

Illegality

10.31

Contract and Tort Please click on the link below to download the entire chapter.

Contract

Page 2 of 4 Contract and Tort

10.1 Where an agency is created by a contract, the agent's overriding duty is to comply with its terms;1. the duty in this respect is one of obedience.2. Given that an agent's function ‘is a matter which depends upon the terms of the contract between [agent and principal]’,3. an agent must be familiar with and appreciate its terms, both express and implied. Thus ‘[i]t is not possible to say that all agents owe the same duties to their principals: it is always necessary to have regard to the express or implied terms of the contract’.4. Yet it can be said that implied into every contract of agency are terms requiring the agent to act in accordance with the instructions contained in the express authority or given subsequently by the principal, to act honestly and in good faith, to exercise proper or reasonable care and skill in discharging the

Page 204 duties as agent and to act for the benefit of the principal (fidelity).5. To this end, an agent must inform the principal of all matters material to the agency.6.

1.

Jones v Canavan [1972] 2 NSWLR 236 at 246

2.

Commerce Realty Ltd v Olenyk (1957) 8 DLR (2d) 60 at 64 per Wilson J (SC(BC)).

3.

Moore v Dent (1918) 18 SR (NSW) 455 at 475 Hine [1891] 1 Ch 390 at 393 per Kekewich J.

4.

Kelly v Cooper [1993] AC 205

5.

Samper v Hade (1889) 10 LR (NSW) L 270 at 273 per Darley CJ; Lysaght Bros & Co Ltd v Falk (1905) 2 CLR 421 at

at 213–14

per Asprey JA. As to non-contractual agencies see 4.14–4.20.

per Ferguson J. See also at 466 per Pring J; Williamson v

per Lord Browne-Wilkinson (PC).

439 per O'Connor J; Lister v Romford Ice and Cold Storage Co Ltd [1957]AC 555 at 572–3 per Viscount Simonds, at 586–7 per Lord Radcliffe; D'Atri v Chilcott (1975) 55 DLR (3d) 30 at 41 per Galligan J (HC(Ont)); Gore Mutual Insurance Co v Barton, Black & Robertson Ltd (1979) 104 DLR (3d) 252 at 255 per Fawcus J (SC(BC)); Aaron Acceptance Corp v Adam (1987) 37 DLR (4th) 133 at 138 per Wallace JA (CA(BC)) (finance broker). However, a term implied in law into an agency contract may operate to limit or modify (though not entirely nullify) the agent's duty of fidelity, and the corresponding fiduciary duty: see, for example, Kelly v Cooper [1993] AC 205 , discussed at 12.53. However, a court is unlikely to imply a term on the grounds of custom that would have the effect of limiting or modifying an agent's duty of fidelity or his or her fiduciary duties: see 10.14–10.16. 6.

See 11.7–11.19.

10.2 In view of the personal and confidential nature of an agency contract, courts are most reticent to order its specific enforcement,7. whether directly by specific performance or indirectly via a mandatory injunction.8. Rather, the chief form of remedy for breach of an agency contract is the award of damages.

7.

As to the courts' unwillingness to grant specific performance of ‘personal’ contracts see I C F Spry, The Principles of Equitable Remedies, 8th ed, Lawbook Co, Sydney, 2010, pp 119–25.

8.

See Bowstead, pp 318–20.

Tort

Page 3 of 4 Contract and Tort

10.3 Stated in broad terms, the foundation for the tortious duty of care in the agency context derives from the nature of the agent–principal relationship, whether described in terms of proximity or by reference to the assumption of responsibility by the agent, coupled with the principal's reliance on the agent to apply the agent's knowledge and skill in performing the services the subject of the agency.9. In these circumstances it is reasonably foreseeable that the agent's failure to attain the required standard in assuming the responsibility may cause loss to the principal. The tortious (but not contractual) duty to the principal can extend to an employee of an agent who comes within the legal boundaries of the duty,10. in which case the agent is vicariously liable to the principal for the acts or omissions of that employee.11.

9.

Hawkins v Clayton (1988) 164 CLR 539 at 578; BC8802597 NSWLR 642 at 653

per Deane J; Waimond Pty Ltd v Byrne (1989) 18

per Kirby P.

10. See, for example, Roots v Oentory Pty Ltd [1983] 2 Qd R 745 Sykes v Colson [1988] ANZ ConvR 250 at 254 Campbell [1990] ANZ ConvR 262 at 263 estate agent to the agent's principal).

; Stewart v Hooker (1988) 2 NZBLC 103,446

;

per Thomas J; Fund of New Zealand Nominees Ltd v

per Robertson J (each involving the liability in tort of an employee of an

11. Sykes v Colson [1988] ANZ ConvR 250 at 255

per Thomas J.

10.4 It is common for agents, particularly agents who provide some form of professional advice or service, to insure against liability for negligence in furnishing that advice or service.12. Some agents, such as solicitors, are required by statute to carry insurance of this kind.13.

12. See, for example, Agents Licensing Act 1979 (NT) Pt XIIA; Agents Licensing Regulations 1979 (NT) Pt IIIA (which make specific provision for real estate agents and business agents to take out indemnity insurance); Property Agents and Land Transactions Act 2005 (Tas) ss 142, 143 (which require real estate agents, property managers and general auctioneers to maintain insurance cover). 13. Legal Profession Act 2006 (ACT) s 311; Legal Profession Act 2004 (NSW) s 406; Legal Profession Act 2006 (NT) s 376; Legal Profession Act 2007 (Qld) s 353; Legal Practitioners Act 1981 (SA) s 19; Legal Profession Act 2007 (Tas) s 45; Legal Profession Act 2004 (Vic) s 3.5.2; Legal Profession Act 2008 (WA) s 40.

Conflation of contract and tort duties

10.5 The law requires an agent to ‘exercise all the skill and all the knowledge he has of a particular business, all the diligence, all the zeal, and all the energy that he is capable of, and any interests he may have himself he is bound to exercise to the fullest extent for the sole and

Page 205 exclusive benefit of the person for whom he is acting’.14. Although historically these duties of skill and care derived solely and entirely from the contract of agency,15. the modern view is that an agent who discharges duties

Page 4 of 4 Contract and Tort negligently is concurrently liable in tort and contract.16. Yet the law of tort has not gone so far as to supersede the law of contract in this context, the High Court in Astley v Austrust Ltd17. rejecting the view propounded by Deane J over 10 years earlier18. that, where a tortious duty to take reasonable care exists, there is no justification for implying a term to that effect into the contract. Both causes of action remain. The mere fact that a contractual duty to take reasonable care is not expressed but rather implied in law does not restrict reliance solely on a tortious cause of action.19. Clearly, however, where the agency is not created by contract,20. any cause of action for the negligent performance of the agency is, at general law, limited to a claim in tort.21. There may be scope, albeit exceptionally, for a claim in tort once the agency contract has come to an end.22. Conversely, if breach of the agency contract does not constitute a tort — and it may be queried whether deviating from the agent's mandate is necessarily a tort23. — the cause of action is limited to contract. Also, there may be a cause of action in equity, say for breach of fiduciary duty or breach of confidence,24. independent of a contractual relationship, such as where the agency is created by means of a non-contractual power of attorney.

14. Price v Metropolitan House Investment and Agency Co Ltd (1907) 23 TLR 630 at 631 approval in Skipper v Mathot [1926] St R Qd 12 at 17 15. Groom v Crocker [1939] 1 KB 194

at 205

per Lawrance J, cited with

per Macnaughton J.

per Greene MR, at 205 per Scott LJ.

16. See, for example, Forsikringsaktieselskapet Vesta v Butcher [1986] 2 All ER 488 at 507 per Hobhouse J (affd Forsikringsaktieselskapet Vesta v Butcher [1989]1 AC 852 ) (insurance broker); Bell v Tinmouth (1987) 39 DLR (4th) 595 at 606 per Paris J (SC(BC)) (insurance broker); Hanflex Pty Ltd v N S Hope & Associates [1990] 2 Qd R 219 (auctioneer). 17. (1999) 197 CLR 1 at 20–3; BC9900546 Merrett Syndicates Ltd [1995]2 AC 145

per Gleeson CJ, McHugh, Gummow and Hayne JJ, following Henderson v at 193–4

per Lord Goff.

18. Hawkins v Clayton (1988) 164 CLR 539 at 583–5; BC8802597

.

19. Astley v Austrust Ltd (1999) 197 CLR 1 at 22–3; BC9900546 per Gleeson CJ, McHugh, Gummow and Hayne JJ. Their Honours were influenced not only by the differences in the elements, remedies and procedure relating to the two causes of action, but also the fact that implied terms are part of the consideration that the promisor (agent) pays in return for the agreement of the promisee (principal) to pay for the promisor's services: at 22. The tort duty arises aside from consideration and not necessarily pursuant to the will of the parties. 20. As to non-contractual agencies see 4.14–4.20. 21. Neagle v Power [1967] SASR 373 at 377 11.36–11.39).

per Bray CJ; Chaudhry v Prabhakar [1988] 3 All ER 718

(discussed at

22. See, for example, Cherry Ltd v Allied Insurance Brokers Ltd [1978] 1 Lloyd’s Rep 274, where Cantley J held a firm of insurance brokers liable for losses suffered by a former client in circumstances where it was reasonable for that client to rely on a statement from the brokers that it was safe to cancel an insurance policy obtained after the client terminated the brokers' retainer. His Lordship reasoned that the brokers were ‘giving information within their specialised knowledge and they knew or ought to have known that it would be taken seriously and acted upon in a transaction of importance’: at 280. 23. See the obiter remarks of Lord Hoffmann in OBG Ltd v Allan [2008] 1 AC 1 ; [2007] UKHL 21 at [93] (who rejected the existence of a tort by which a purported agent can be strictly liable for causing the principal loss by making the principal liable, by virtue of ostensible authority, under a disadvantageous contract). Cf Bowstead, p 177 (envisaging that the same may not be so in the context of a non-contractual agency, as to which see 4.14–4.20). 24. See 12.2–12.55 (fiduciary duties), 12.57–12.61 (duty of confidentiality).

End of Document

Fiduciary Law Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 10: Sources and Incidents of Duties > Chapter 10 Sources and Incidents of Duties

Fiduciary Law Please click on the link below to download the entire chapter.

Fiduciary duties

10.6 The general principle underlying fiduciary duties was explained by Lord Chelmsford LC as follows in Tate v Williamson:25.

Page 206 Wherever two persons stand in such a relation that, while it continues, confidence is necessarily reposed by one, and the influence which naturally grows out of that confidence is possessed by the other, and this confidence is abused, or the influence is exerted to obtain an advantage at the expense of the confiding party, the person so availing himself of his position will not be permitted to retain the advantage, although the transaction could not have been impeached if no such confidential relation had existed.

The concern that ‘no man ought to be trusted in a situation that gives him the opportunity of taking advantage of the person who has reposed confidence in him’26. led courts of equity, from the earliest times, to impose two negative or proscriptive duties on persons in whom such confidence is placed.27. First, a person must not, except with the informed consent of the person to whom he or she owes fiduciary duties (‘principal’), place himself or herself in a position where there is or may be a conflict between the duty as a fiduciary and his or her own interest or a duty to a third party, or between the duty as a fiduciary to two or more persons in the same transaction or matter (the ‘noconflict’ duty). Second, a person must not make a profit out of a fiduciary relationship except with the informed consent of the principal (the ‘no-profit’ duty). Importantly, no informed consent can be given unless there is ‘a full and complete disclosure of all material facts by the fiduciary to his principal’ pertaining to the conflict or profit.28. The obligation to make full disclosure extends to all material information of which the fiduciary is aware or has deliberately refrained from acquiring, but does not extend to facts of which the fiduciary is unaware notwithstanding that prudent inquiry would reveal their existence.29.

25. (1866) LR 2 Ch App 55 at 61 Gummow and Lehane, Ch 5.

.On fiduciary relations see generally Dal Pont, Equity and Trusts, Ch 4; Meagher,

26. Rothschild v Brookman (1831) 1 Dow & Cl 188 at 197; 6 ER 699 at 702 per Lord Wynford. See also Bentley v Craven (1853) 18 Beav 75 at 76–7; 52 ER 29 at 30 per Romilly MR (‘an agent will not be allowed to place himself in a situation which, under ordinary circumstances, would tempt a man to do that which is not the best for his principal’). 27. Moss v Moss (No 2) (1900) 21 LR (NSW) Eq 253 at 258 per Simpson CJ; Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 67; BC8400480 Mothew [1996] 4 All ER 698 at 711–12

per Gibbs CJ; Bristol and West Building Society v

per Millett LJ.

28. Baillie v Charman (1992) 94 DLR (4th) 403 at 412 per Toy JA (CA(BC)).

Page 2 of 12 Fiduciary Law 29. BLB Corporation of Australia Establishment v Jacobsen (1974) 48 ALJR 372 at 378

(FC(HC)).

10.7 The objective of fiduciary duties is to ‘preclude the fiduciary from being swayed by considerations of personal interest and from accordingly misusing the fiduciary position for personal advantage’30. and to ensure fiduciaries conduct themselves at a higher standard than the ordinary person.31. The standard they impose is one of undivided loyalty by the fiduciary to the principal. Standards of competence are the domain of contract and tort.32. Therefore, a fiduciary duty is ‘a duty which impacts upon conscience by requiring the [agent] to treat the [principal's] interests as paramount’.33. Such a duty imposes a more stringent standard than the law of contract or tort, which prohibits a fiduciary acting in his or her own interests only to the extent that such conduct constitutes a breach of contract or a tort. Duties not to act unconscionably, to deal fairly, or to act in good faith may reflect a notion similar to the fiduciary duty but nonetheless fall short of the fiduciary standard of selflessness and loyalty.34. In other words, there are graduated standards of behaviour above those imposed by tort or contract law,

Page 207 or even by statute,35. but only the highest of these is represented by the fiduciary standard.36. It is therefore unsurprising that the fiduciary standard expected by law of a fiduciary agent has been described as one which ‘sometimes conflicts with the standard of conduct adopted for themselves by commercial men — not by honourable men of commerce, but by a great many men engaged in mercantile transactions’.37.

30. Warman International Ltd v Dwyer (1995) 182 CLR 544 at 557–8; BC9506414 31. Warman International Ltd v Dwyer (1995) 182 CLR 544 at 557; BC9506414

(FC). (FC).

32. As to these standards in the context of agency see Ch 11. 33. Bank of New Zealand v New Zealand Guardian Trust Co Ltd [1999] 1 NZLR 213 at 246 New Zealand v New Zealand Guardian Trust Co Ltd [1999]1 NZLR 664

per Fisher J (affd Bank of

).

34. See P D Finn, ‘The Fiduciary Principle’ in T G Youdan (ed), Equity, Fiduciaries and Trusts, Carswell Co, Toronto, 1989, p 1 (who maintains that ‘unconscionability’ permits one party to act self-interestedly in his or her actions towards the other but then precludes excessively self-interested or exploitative conduct; ‘good faith’ permits a party to act selfinterestedly, but requires that party to have regard to the legitimate interests of the other; and the ‘fiduciary’ standard requires one party to act selflessly and with undivided loyalty in the interests of the other: pp 3–4); Hughes Aircraft Systems International v Airservices Australia (1997) 146 ALR 1 at 81; BC9702751

per Finn J; Gibson Motorsport

Merchandise Pty Ltd v Forbes (2006) 149 FCR 569; [2006] FCAFC 44; BC200601681 at [107] Emmett JJ.

per Sundberg and

35. For instance, the statutory proscription against misleading or deceptive conduct: see 10.28. 36. P D Finn, ‘The Fiduciary Principle’ in T G Youdan (ed), Equity, Fiduciaries and Trusts, Carswell Co, Toronto, 1989, p 4. 37. Rhodes v Macalister (1923) 29 Com Cas 19 at 29

per Atkin LJ.

10.8 The proscriptive, not prescriptive, nature of fiduciary duties dictates that Australian law ‘does not … impose positive legal duties on the fiduciary to act in the interests of the person to whom the duty is owed’.38. Positive legal duties stem from contract, tort or statute. Yet part and parcel of these proscriptive duties is necessarily a duty, of a positive kind, on a fiduciary to disclose any conflict of interest or unauthorised profit arising during, as opposed to before the creation of, the fiduciary relationship. As this disclosure is necessary to avoid the conduct proscribed by the above

Page 3 of 12 Fiduciary Law fiduciary duties, the duty to disclose is properly seen as an adjunct to the proscriptive fiduciary duties rather than an independent prescriptive duty. As explained by a Federal Court judge:39. [T]hat which is often regarded as a fiduciary obligation of disclosure should not be seen as a positive duty resting on a fiduciary, but a means by which the fiduciary obtains the release or forgiveness of a negative duty; such as the duty to avoid a conflict of interest, or the duty not to make a secret profit.

Importantly, where the courts speak of a fiduciary's duty to make full disclosure to the principal outside of the disclosure required by fiduciary law — such as the duty to disclose all material information in the fiduciary's possession encompassed within the scope of the fiduciary relationship40. — this positive duty stems from contract and tort law.41. The duty to disclose in Australian law does not, in any case, encompass a duty by a fiduciary to disclose his or her breaches of duty to the principal. Although there is English authority that recognises such a duty in the context of a director breaching fiduciary duty,42. this has found little judicial favour in Australia for being inconsistent with accepted fiduciary principle.43. It

Page 208 has been the subject of criticism by at least one non-Australian commentator.44. That is not to deny that a person who owes fiduciary duties to another may owe that other person a duty of disclosure sourced in contract45. or under statute.46.

38. Breen v Williams (1996) 186 CLR 71 at 113; BC9604086 per Gaudron and McHugh JJ. See also Attorney-General v Blake [1998] Ch 439 at 455 per Lord Woolf MR (‘It tells the fiduciary what he must not do. It does not tell him what he ought to do’). In Breen v Williams the High Court expressly rejected Canadian courts' tendency to view the fiduciary relationship as imposing obligations extending beyond exacting loyalty, so creating an independent source of positive obligations supporting a new civil wrong: see at 95 per Dawson and Toohey JJ, at 113 per Gaudron and McHugh JJ. 39. Fitzwood Pty Ltd v Unique Goal Pty Ltd (in liq) (2001) 188 ALR 566; [2001] FCA 1628; BC200107154 at [32]

per

Finkelstein J. See also P & V Industies Pty Ltd v Porto (No 2) [2007] VSC 64; BC200701691 at [22] per Hollingworth J (‘advance disclosure functions only as the means of obtaining the consent of the beneficiary, thereby avoiding a breach of the two fundamental rules governing proscriptive fiduciary relationships’); Wilden Pty Ltd v Green (2009) 38 WAR 429; [2009] WASCA 38; BC200900620 at [106]

per McLure JA, at [241] per Pullin JA;

Blackmagic Design Pty Ltd v Overliese (2010) 84 IPR 505; [2010] FCA 13; BC201000102 at [94] [96]

per Jessup J

(affd Blackmagic Design Pty Ltd v Overliese (2011) 191 FCR 1; [2011] FCAFC 24; BC201100702 at [105] [108] Besanko J). 40. See, for example, Clark Boyce v Mouat [1993] 3 NZLR 641 at 648

per

(PC).

41. See 11.7–11.10. 42. Item Software (UK) Ltd v Fassihi [2005] 2 BCLC 91; [2004] EWCA Civ 1244

.

43. P & V Industries Pty Ltd v Porto (2006) 14 VR 1; [2006] VSC 131; BC200601896 at [24], [25]

per Hollingworth J; P

& V Industies Pty Ltd v Porto (No 2) [2007] VSC 64; BC200701691 at [22] [30] per Hollingworth J. See also D Jensen, ‘Prescription and Proscription in Fiduciary Obligations’ (2010) 21 King's LJ 333 (who argues against a positive duty to ‘confess’ conduct contrary to the principal's interests, preferring to maintain the proscriptive paradigm because: (1) it confines fiduciary obligations to their proper place within the broader complex of legal duties owed by those who undertake to act in the interests of another; (2) the disclosure rule functions not as a primary rule of obligation but as a subsidiary rule, which when it applies serves to remove the relevant activities from the scope of the proscription, and (3) it is best reflected in the remedies awarded for breach of fiduciary duty). 44. See A Berg, ‘Fiduciary Duties: A Director's Duty to Disclose his Own Misconduct’ (2005) 121 LQR 213. 45. For example, an employee may owe a contractual duty of disclosure to his or her employer.

Page 4 of 12 Fiduciary Law 46. See, for example, Corporations Act 2001 (Cth) s 191, which imposes an obligation on a director to notify other directors of material personal interests.

Translation of fiduciary duties to agency

10.9 The above fiduciary duties translate in full force to the vast majority of agent–principal relationships,47. which include the case of a self-appointed agent.48. Phrased in general terms, ‘[t]he fundamental basis of the contract of agency requires the agent to give an exclusive allegiance to his principal and to promote his interests with singleness of purpose’.49. This strict duty of loyalty entitles the principal to ‘the disinterested advice of his agent free from the potentially corrupting influence of an interest of his own’,50. and so requires an agent to act ‘with perfect candour and honesty towards the principal whose confidence is reposed in him’.51. Thus there are various judicial statements to the effect that ‘no agent in the course of his agency can be allowed to make any profit without the knowledge and assent of his principal’,52. and that ‘an agent is not allowed to put himself in a position in which his interest conflicts [or may conflict] with his duty without a full disclosure of all material facts to his principal, and without his principal's assent’.53. The onus of proving the requisite full disclosure and the consequent express or necessarily implied assent by the principal lies on the agent.54.

47. Keith Henry & Co Pty Ltd v Stuart Walker & Co Pty Ltd (1958) 100 CLR 342 at 350; BC5800140 McTiernan and Fullagar JJ; Scott v Davis (2000) 204 CLR 333; [2000] HCA 52;

per Dixon CJ,

BC200005826 at [229]

per

Gummow J. In fact, in Breen v Williams (1996) 186 CLR 71 at 82; BC9604086 Brennan CJ identified agency as one of the two sources of fiduciary duties. His Honour was explaining the circumstances that attract fiduciary duties, and justifying the imposition of such duties in relationships where one person represents another's interests, which equates to the legal relationship of agency: see 1.4.As to non-fiduciary agents see 10.17, 10.18. 48. Lyell v Kennedy (1889) 14 App Cas 437

; Boardman v Phipps [1967] 2 AC 46

; Walden Properties Ltd v

Beaver Properties Pty Ltd [1973] 2 NSWLR 815 at 833 per Hope JA, at 841 per Hutley JA. Persons can place themselves under fiduciary duties of their own volition, such as by a unilateral undertaking to act in the interests of another, or simply stemming from the relative position of vulnerability and inequality with regard to another person. There is no need for expressed or agreed trust and confidence. As to the indicia that attract the imposition of fiduciary duties see Dal Pont, Equity and Trusts, [4.50]–[4.70]. 49. Sutton v Forst (1925) 55 OLR 281 at 284 per Middleton JA (CA(Ont)). See also Gillett v Peppercorne (1840) 3 Beav 78 at 83–4; 49 ER 31 at 33 per Lord Langdale MR, who stated that ‘where a man employs another as his agent, it is on the faith that such agent will act in the matter purely and disinterestedly for the benefit of his employer’. 50. Logicrose Ltd v Southend United Football Club Ltd [1988] 1 WLR 1256 51. Keogh v Dalgety & Co Ltd (1916) 22 CLR 402 at 417; BC1600015 52. Parker v McKenna (1874) LR 10 Ch App 96 53. Moiler v Forge (1927) 27 SR (NSW) 69 at 71 173

at 124

at 1260

per Millett J.

per Isaacs, Gavan Duffy and Rich JJ.

per James LJ.

per Street CJ. See also Howard v Black (1916) 16 SR (NSW) 169 at

per Pring J; Tasmanian Finance & Agency Co Ltd v Bingham [1945] Tas SR 68 at 69

per Morris CJ.

54. Charles Baker Ltd v Baker [1954] 3 DLR 432 at 440 per Mackay JA (CA(Ont)); Christie v McCann (1972) 27 DLR 544 at 546 per Evans JA (CA(Ont)); Advanced Realty Funding Corp v Bannink (1979) 106 DLR (3d) 137 at 141 per Arnup JA (CA(Ont)).

Illustration — donees of powers of attorney

10.10

Page 5 of 12 Fiduciary Law Donees of powers of attorney (‘attorneys’), as fiduciary agents, must not exercise their authority in a way contrary to the interests of their principals.55. So, like other agents, a donee of a power of attorney is, in the absence of a clear power to do so, prohibited from utilising that authority to pay personal debts,56. or to make presents to himself or herself or to others

Page 209 of the principal's property.57. Apart from any liability at common law, the donee becomes a constructive trustee of the misapplied property.58. Some jurisdictions give statutory effect to this fiduciary proscription by providing that a power of attorney confers no authority to do any act by which a benefit would be conferred on the donee except as expressly permitted by its terms,59. and prohibiting a donee of a power of attorney from entering into a transaction giving rise to a conflict of interest and duty.60. Aligned with the foregoing, the trend of case authority (stemming from New South Wales) indicates that merely vesting in an attorney a general power — under which the attorney has the authority to do on behalf of the principal anything that the principal may lawfully authorise an attorney to do — does not entitle the attorney to exercise that power for his or her own purposes.61. The fiduciary overtones to which attorneys are subject would otherwise be negated, and the power would be no more than a general disposition of property in favour of the attorney.62. As foreshadowed above, a power can justify an attorney acting in his or her own interests, contrary to those of the principal, in the capacity of attorney only pursuant to authority ‘expressly and unambiguously bestowed’.63.

55. Powell v Thompson [1991] 1 NZLR 597 at 605

per Thomas J. As to these restrictions on agents see 12.2–12.55.

56. Reckitt v Barnett, Pembroke and Slater Ltd [1929] AC 176 per Thomas J. 57. Reckitt v Barnett, Pembroke and Slater Ltd [1928] 2 KB 244

; Powell v Thompson [1991] 1 NZLR 597 at 605

at 268

per Russell J.

58. Gray v Johnston (1868) LR 3 HL 1; Burdick v Garrick (1870) 5 Ch App 233 at 569

; John v Dodwell & Co [1918] AC 563

(PC).

59. Powers of Attorney Act 2006 (ACT) s 34; Powers of Attorney Act 2003 (NSW) s 12(1) (cf s 12(2), which adds that a prescribed power of attorney that includes the ‘prescribed expression’ authorises the conferral on the attorney of the limited kinds of benefits that are specified: see Dal Pont, Powers of Attorney, [7.14]). 60. Powers of Attorney Act 1998 (Qld) s 73 (see, for example, Public Trustee of Queensland v Ban [2011]QSC 380; BC201109623

).

61. Spina v Conran Associates Pty Ltd (2008) 13 BPR 25,435; [2008] NSWSC 326; BC200802476 at [71] [84] Austin J; Ward v Ward (No 2) [2011] NSWSC 1292; BC201109231 at [3] [4] Ltd v Gibson [2013] NSWSC 276; BC201301492 at [30] [31] 31,481; [2013] NSWSC 400;

per

per Brereton J; Perpetual Trustee Co

per Rein J; Perochinsky v Kirschner (2013) 16 BPR

BC201302003 at [67] [75], [89] [90]

per White J. Contra Spina v Permanent

Custodians Ltd (2008) 13 BPR 25,463; [2008] NSWSC 561; BC200805086 at [129] [151]

per Hammerschlag J

(revd Spina v Permanent Custodians Ltd (2009) 14 BPR 26,923; [2009] NSWCA 206; BC200906292 power of attorney issue).

but not on the

62. See Dal Pont, Powers of Attorney, [7.2]–[7.4]. 63. Perpetual Trustee Co Ltd v Gibson [2013] NSWSC 276; BC201301492 at [30] Barnett, Pembroke & Slater Ltd [1928] 2 KB 244 irresistible’).

Illustration — stockbrokers

10.11

at 268

per Rein J. See also Reckitt v

per Russell J (referring to words ‘unambiguous and

Page 6 of 12 Fiduciary Law The relationship between stockbroker and client is clearly of a fiduciary nature,64. such as to place upon the broker the duty to make to the client full and accurate disclosure of the broker's own interest in the transaction.65. The point was explained by Street J in Bonds & Securities (Trading) Pty Ltd v Glomex Mines NL as follows:66. The occupation of sharebroking demands high standards of integrity. In carrying on his occupation a sharebroker acts, not for himself, but for his client … Those clients are entitled to expect from a broker not only competence, but also integrity and absence of conflicting personal interests. His position is one of trust and responsibility. By the recognition and pursuit of the high traditions of their occupation, brokers have aspired to the status of an honourable profession.The price they must pay for this status is that they forswear all compromise of their integrity, and that they repudiate the creation of personal interests which could bring them into conflict with their duty to their clients.

Hence, like other fiduciaries, stockbrokers must not act in their own interests where it would be inconsistent with their duty to their clients (principals). For instance, a stockbroker must not transact securities in competition with clients, the concern being that a broker who acts

Page 210 as a trader of shares personally may be unable to provide clients with advice uninfluenced by collateral considerations stemming from this trading activity.67. The Corporations Act 2001 (Cth) statutorily reflects financial services licensees' duty not to compete with their clients. It prohibits a stockbroker, as a financial services licensee,68. from purchasing or selling on his or her own behalf (or on behalf of an associate) a financial product traded on a licensed market if a client has instructed the stockbroker to purchase or sell financial products of the same class and the stockbroker has not complied with that instruction.69. Where a stockbroker recommends a financial product, the Act requires full disclosure of any remuneration or other benefit that he or she (or an associate) will or may receive as a result of, or any interest of his or hers (or an associate's) that may reasonably be expected to be capable of influencing, that recommendation.70. The latter is aimed at assisting the consumer in identifying potential biases associated with the advice in question and potential conflicts of interest facing the broker in recommending a particular financial product.71. As from 1 July 2012,72. moreover, the Act prohibits a stockbroker from accepting ‘conflicted remuneration’,73. namely any benefit given to a stockbroker that, because of its nature or the circumstances in which it is given, could reasonably be expected to influence the choice of financial product recommended or the financial product advice given.74.

64. See further A Black, ‘Professional Responsibilities and Fiduciary Obligations of Securities Brokers’ (1991) 14 UNSWLJ 98 at 109–15. 65. Daly v Sydney Stock Exchange Ltd (1986) 160 CLR 371 at 377

per Gibbs CJ, at 384 per Brennan J; BC8601425

. 66. [1971] 1 NSWLR 879 at 891

.

67. Hewson v Sydney Stock Exchange Ltd [1968] 2 NSWR 224 at 231 per Street J. See further A Black, ‘Professional Responsibilities and Fiduciary Obligations of Securities Brokers’ (1991) 14 UNSWLJ 98 at 137–8. 68. See 3.12. 69. Corporations Act 2001 (Cth) s 991B(1), s 991B(2) (note the exceptions ins 991B(3); Corporations Regulations 2001 (Cth) reg 7.8.17). See Baxt, Black and Hanrahan, [14.78]. 70. Corporations Act 2001 (Cth) s 947B(2)(d), s 947B(2)(e) (content of the Statement of Advice). 71. Baxt, Black and Hanrahan, [14.36]. 72. Being the commencement date of the Corporations Amendment (Future of Financial Advice) Act 2012 (Cth). 73. Corporations Act 2001 (Cth) s 963E(1) (proscription extends to an authorised representative: s 963G(1)). 74. Corporations Act 2001 (Cth) s 963A.

Strictness of fiduciary duties

Page 7 of 12 Fiduciary Law

10.12 In that the fiduciary rule is ‘founded upon the highest and truest principles of morality’,75. and that ‘[t]he court of equity has always been a jealous guardian of the rights of the person entitled to the benefit of the performance of fiduciary duties’,76. the courts apply the ‘no-conflict’ and ‘no-profit’ duties strictly.77. Mahoney JA explained a reason for this strictness in Blackman v Thompson:78. Experience has shown that there may be difficulty in showing whether the profit or advantage which an agent has acquired from a property was acquired because of the agent's special position or knowledge or merely from his own efforts.To prevent argument about these matters and … to deter misconduct by an agent, the law has ordinarily held that, where trust [fiduciary] obligations exist, the person bound by such obligations is not merely forbidden to take advantage of the position or information: it may not even put itself in a position where its duty to the principal conflicts with an interest of its own; and that, if the agent acquires a benefit, that benefit must be conveyed to the principal even though the principal himself could not or would not have entered into the transaction by which it was obtained …

The fiduciary proscriptions are construed strictly ‘in order to prevent the danger arising from the difficulty of disproving in particular cases that duty has given away to interest’.79. The no-profit rule is inflexible — a court is not entitled to receive evidence as to whether or not the principal suffered loss or injury by reason of the agent's dealing, ‘for the safety of mankind

Page 211 requires that no agent shall be able to put his principal to the danger of such an inquiry as that’.80. For this reason, there is authority, though not without its detractors, to the effect that once a breach of fiduciary duty is shown, it is no defence to a principal's claim for equitable compensation that, had the breach not occurred, the principal may have acted in the same fashion and with the same consequences.81.

75. Parker v McKenna (1874) LR 10 Ch App 96

at 118

per Lord Cairns LC.

76. Walden Properties Ltd v Beaver Properties Pty Ltd [1973] 2 NSWLR 815 at 846

per Hutley JA.

77. In the words of the Supreme Court of Canada: ‘The law takes a hard line against faithless fiduciaries’: Cadbury Schweppes Inc v FBI Foods Ltd (1999) 167 DLR (4th) 577 at 591 78. [1994] ANZ ConvR 279 at 280–1; BC9302348

.

79. Lagunas Nitrate Company v Lagunas Syndicate [1899] 2 Ch 392 80. Parker v McKenna (1874) LR 10 Ch App 96 AC 507 Gibbs J.

per Binnie J.

at 124

at 442

per Rigby LJ.

per James LJ. See also Reading v Attorney-General [1951]

; Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373 at 394; BC7500014

per

81. This is known as the Brickenden principle (after the decision of the Privy Council in Brickenden v London Loan & Saving [1934] 3 DLR 465 at 469 and Lehane, [23-020].

), as to which see Dal Pont, Equity and Trusts, [34.20]–[34.45]; Meagher, Gummow

10.13 So strictly are the no-conflict and no-profit rules adhered to that ‘no question is allowed as to the fairness or unfairness of a contract so entered into’.82. The fulfilment or breach of the fiduciary proscriptions is accordingly not dependent on the honesty, righteousness, good faith or otherwise of an agent's acts;83. a person can default as a fiduciary and yet still have acted honestly.84. As explained by the English Court of Appeal:85.

Page 8 of 12 Fiduciary Law

[I]t is most important in the interests of commercial honesty in general that the honesty of the agent concerned in the particular transaction should not be inquired into as a question upon which its validity depends, for by this strictness the temptation to embark in what must always be a doubtful transaction is removed.

Hence, a principal carries no onus to establish that the agent has acted fraudulently,86. dishonestly or in bad faith, or that the agent was motivated by any such intent, in order to prove a breach of fiduciary duty.87. The fact that the agent saw no harm in the transaction is irrelevant.88. The court acts prophylactically in order to set an example of commercial morality and deter agents generally who may be tempted to place their own interest before that of their principal, to whom they owe undivided loyalty.89.

82. Aberdeen Railways Co v Blakie Brothers (1854) 1 Macq 461 at 471

per Lord Cranworth.

83. Charles Baker Ltd v Baker [1954] 3 DLR 432 at 438 per Mackay JA (CA(Ont)). 84. Boardman v Phipps [1967] 2 AC 46

; Warman International Ltd v Dwyer (1995) 182 CLR 544 at 558, 561–2;

BC9506414

(FC); Hughes Aircraft Systems International v Airservices Australia (1997) 146 ALR 1 at 81;

BC9702751

per Finn J; Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (1998) 28 ACSR 688 at 721; [1998] NSWSC

413; BC9804582

per Young J (‘equity … makes even a comparatively innocent fiduciary account’).

85. De Bussche v Alt (1878) 8 Ch D 286 (SCC).

at 316

. See also Stahl v Miller (1918) 40 DLR 388 at 395 per Brodeur J

86. It must be noted, however, that courts sometimes describe a breach of fiduciary duty as constituting equitable fraud. This should not be seen as proffering a requirement that a principal establish fraud by an agent as a prerequisite to succeeding in an action for breach of fiduciary duty. 87. Baillie v Charman (1992) 94 DLR (4th) 403 at 412 per Toy JA (CA(BC)). See also Lagunas Nitrate Company v Lagunas Syndicate [1899] 2 Ch 392

at 442

per Rigby LJ; Hovenden & Sons v Millhoff (1900) 83 LT 41 at 43

Romer LJ; Logicrose Ltd v Southend United Football Club Ltd [1988]1 WLR 1256

at 1261

per

per Millett J.

88. Swale v Ipswich Tannery (1906) 14 Com Cas 88 at 95–6 per Kennedy J. 89. Warman International Ltd v Dwyer (1995) 182 CLR 544 at 557–8, 561–2; BC9506414 (FC); Hodgkinson v Simms (1995) 117 DLR (4th) 161 at 174 per La Forest J (‘the fiduciary principle monitors the abuse of a loyalty reposed’); Maguire v Makaronis (1997) 188 CLR 449 at 495–6; BC9702653

per Kirby J.

Custom and fiduciary duties

10.14 The courts have, generally speaking, accorded a frosty reception to arguments that fiduciary duties can be ousted, or even diluted, by custom in a particular business or profession.90. For instance, an English judge has remarked that ‘a custom will not be upheld … if it contradicts the vital principle that an agent may not at the same time serve two masters — two principals — in actual or potential opposition to each other: unless, indeed, he has the explicit, informed,

Page 212 consent of both principals’.91. So unless the terms of the agency specifically authorise what would otherwise amount to a fiduciary breach, the court will not construe them, however widely they may be expressed, to authorise the agent to deal with the principal's property in a manner inconsistent with the agent's fiduciary duties.92.

Page 9 of 12 Fiduciary Law

90. See, for example, De Bussche v Alt (1878) 8 Ch D 286 at 317 per Thesiger LJ; Alexander v Webber [1921] 1 KB 642 at 644 per Bray J; Accidia Foundation v Simon C Dickinson Ltd [2010] EWHC 3058 (Ch) at [74], [75] per Vos J. 91. Anglo-African Merchants Ltd v Bayley [1970] 1 QB 311

at 324

per Megaw J. See also Alexander v

Webber [1921] 1 KB 642 at 644 per Bray J; Jones v Canavan [1972] 2 NSWLR 236 at 244 per Jacobs JA (‘it may be said that a custom or usage that an agent may act for both parties to a transaction is unreasonable and the principal will incur no liability to the agent in consequence of such a custom unless he had actual knowledge of the custom at the time when he conferred the authority on the agent and made the contract of agency’); Pryke v Gibbs Hartley Cooper Ltd [1991] 1 Lloyd’s Rep 602 at 615 per Waller J. 92. Tobin v Broadbent (1947) 75 CLR 378 at 401; BC4700530

per Dixon J (involving a power of attorney).

10.15 A court is especially wary where the alleged custom is of the agent's creation or to the agent's convenience or advantage.93. For example, in Thornley v Tilley94. Higgins J rejected that trade usage or custom could support an entitlement by sharebrokers to profit made on shares purchased with their clients' money, requiring a specific provision in the agreement between broker and client to justify anything like this. In Fullwood v Hurley Scrutton LJ remarked that:95. … the law has held that a custom to the effect that an agent shall have double brokerage without informing his principal is unreasonable, and shall not be enforced; and anybody who does want to get double commission, where he has two different interests in himself which may clash, must fulfil to the strictest extent the requirements of the law.

93. Robinson v Mollett (1875) LR 7 HL 802 at 829 per Cleasby B (who remarked that the rule that agents cannot act so as to bind their principals where they have an adverse interest in themselves ‘cannot be defeated by a usage … of brokers, which is plainly of their own creation for their convenience and advantage in the settlement of speculative dealings’). 94. (1925) 36 CLR 1 at 19; BC2500028 95. [1928] 1 KB 498

at 504

.

.

10.16 However, the nature of the trade, business or profession may lead a court to modify the scope of fiduciary duties in specific aspects of that trade, business or profession. An example is found in the following extract from the judgment of Jacobs JA in Jones v Canavan in the context of stockbrokers:96. [T]he custom or usage of marrying transactions in the same broker's office is not unreasonable where the marrying or crossing of transactions does not result in any realistic way in a conflict of duty and interest. The limited function of the stock and sharebroker makes him an intermediary rather than a negotiating agent. He has the privilege of operating upon a very special kind of market where the commodity is in more or less large supply and the trends of price are governed by a conjunction of factors depending upon the actual buying and selling orders held by the brokers. Although no doubt each broker on each order has an obligation to obtain the best price that he can, the lowest for the buyer and the highest for the seller, he accomplishes this by nothing which could be described as a negotiation in the ordinary sense of an agent

Page 10 of 12 Fiduciary Law negotiating a sale or a purchase. There is, therefore, no area in which the common law rule that an agent may not act for both parties without the informed consent of those parties can effectually and realistically operate. There is no reason, therefore, why the apparently universal custom and usage of stock and sharebrokers on the marrying or crossing of orders should not be recognised by the courts and regarded as reasonable.

Thus where acting as agent for both vendor and purchaser does not give rise to any real possibility of conflict between the interests of each principal, the logic for the fiduciary proscription fades.97. Similarly, there is authority that commercial necessity dictates that an estate agent can act for two or more principals with competing interests, such as vendors of like properties, without breaching any fiduciary duty.98. Such a case, like the example above

Page 213 concerning the broker marrying transactions, can alternatively be explained on the basis of implication of a term into the contract of agency to give it business efficacy.

96. [1972] 2 NSWLR 236 at 245 .See also at 247 per Asprey JA. Cf Greig and Gunningham, [1.054] (who criticise Jones v Canavan for ‘ignor[ing] a substantial policy issue in accepting the reasonableness of a practice of benefit to the broker rather than to the investor’). 97. See 12.49. 98. Kelly v Cooper [1993] AC 205

, discussed at 12.53.

Non-fiduciary agents

10.17 In Jones v Bouffier99. Isaacs J remarked that ‘[n]ot every agent is a fiduciary’. Several comments can be made regarding this statement. First, it must be viewed in its context. His Honour made the statement in the course of determining whether or not a fiduciary relationship existed on the facts before him. His view, which is clearly correct, was that a fiduciary relationship can be created without proof of agency; agency is simply one type of relationship giving rise to fiduciary duties.100. Second, it recognises the notion later reiterated by Lord Wilberforce that ‘[a] person in his position may be in a fiduciary position quoad a part of his activities and not quoad other parts’.101. For example, a partner who receives money on account of the partnership (on behalf of himself or herself and the partnership) does not receive it in a fiduciary capacity towards the other partners.102. Third, it also recognises that the nature of fiduciary duties may vary according to the nature of the relationship that gives rise to those duties. Some fiduciary relationships (sometimes denoted ‘horizontal’)103. envisage an agent acting jointly in his or her own interests and those of the other party(ies) to the relationship.104. A typical example is the agency created by the relation of partners to the partnership.105. In the ordinary (so-called ‘vertical’) agency relationship the agent must act solely in the interests of the principal. Yet even in the latter case, there may be grounds to modify the scope of the fiduciary duty to recognise what are the commercial necessities under which the relationship must operate.106.

99. (1911) 12 CLR 579 at 613; BC1190102

.

100.Cf McKenzie v McDonald [1927] VLR 134 at 145 where Dixon AJ inquired as to whether the defendant real estate agent occupied such a position of confidence as to bring himself within the no-conflict and no-profit rules. If taken at face value, this may suggest that not every person called an agent will necessarily be subject to these rules. The better view, however, is that his Honour made the inquiry in question with the object of determining whether or not the defendant had self-appointed as an agent for the plaintiff vendor — that is, for the purpose of determining whether or not an agency relationship existed between the defendant and the plaintiff.

Page 11 of 12 Fiduciary Law 101.New Zealand Netherlands Society (‘Oranje’) Inc v Kuys [1973] 2 All ER 1222 at 1225 202.

. See also Bowstead, pp 199–

102.Piddocke v Burt [1894] 1 Ch 343 at 346 per Chitty J; Trevor v Hutchins (1897) 76 LT 183 at 186 per Stirling J. Cf the case, for example, of an auctioneer who is in a fiduciary capacity with respect to the money produced by the sale of goods entrusted to him or her: Crowther v Elgood (1887) 34 Ch D 691

.

103.News Ltd v Australian Rugby Football League Ltd (1996) 139 ALR 193 at 312; BC9604667

(FC(FCA)).

104.Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 99; BC8400480

per Mason J.

105.In fact, in Jones v Bouffier (1911) 12 CLR 579 at 613; BC1190102 Isaacs J himself stated that ‘even partners do not for all purposes act as fiduciaries’. As to partners as agents see 1.48. 106.For example, commercial necessity dictates that estate agents may act for principals with conflicting interests (see Kelly v Cooper [1993]AC 205 , discussed at 12.53), that estate agents who do not list the property in question owe more restricted fiduciary duties to the vendor when presenting an offer (see Knoch Estate v Jon Picken Ltd (1991) 83 DLR (4th) 447, discussed at 1.54), and that stockbrokers may act for both vendor and purchaser of securities (see 12.49).

10.18 Notwithstanding the foregoing, there are relationships described in terms of ‘agency’ that do not attract fiduciary duties. To this end, it has been said that ‘the mere fact that a person wears the badge of an “agent” does not automatically subject him or her to fiduciary duties towards his or her principal’.107. A reason for this is that not all persons who are branded ‘agents’ necessarily fulfil the legal concept of agency.108. Yet there are those who reflect aspects of an agency at law but may nonetheless not owe fiduciary duties, or at least are fiduciaries only in a more limited sense. The privately appointed receiver is an example of the former, although

Page 214 the law accepts that a receiver's agency is a peculiar one.109. An example of the latter may be travel agents, who even though they are termed ‘agents’, cannot in practice be subject to the whole gamut of fiduciary duties because they act for more than one ‘principal’, and may indeed compete with their ‘principals’.110. Moreover, it is possible for a person to come within the statutory concept of an agent but owe no fiduciary duties. In Upjay Pty Ltd v MJK Pty Ltd,111. for instance, the defendants engaged the plaintiffs for the purpose of locating sites suitable for a showroom and warehouse, and to secure a lease of such premises, under an oral agreement entitling the plaintiffs to $300,000 as commission once the tasks had been performed. The Full Court of the South Australian Supreme Court held that the plaintiffs had acted as agents within the meaning of the Land Agents Act 1994 (SA) s 4(1) even though the relationship between them and the defendant was not a fiduciary one. In so ruling, Wicks J, with whom Doyle CJ and Williams J concurred, noted that the plaintiffs did not act in the interests of the defendant in the exercise of a power or discretion that would have affected the defendant's interests in a legal or practical sense.112. Yet as the fiduciary issue did not go to the core of the dispute, these remarks were obiter. In any event, the decision may highlight no more than that mere intermediaries and introducers of business will not always exhibit the (fiduciary) aspects of an agency at law.113.

107.Knoch Estate v Jon Picken Ltd (1991) 83 DLR (4th) 447 at 471–2 per Griffiths JA (CA(Ont)). 108.See 1.5, 1.6. 109.See 1.45. The agency of a privately appointed receiver has been described as perhaps the only genuinely non-fiduciary agency: Meagher, Gummow and Lehane,[28-225]. 110.See 12.51. 111.(2001) 79 SASR 32; [2001] SASC 62; BC200100962

.

Page 12 of 12 Fiduciary Law 112.Upjay Pty Ltd v MJK Pty Ltd (2001) 79 SASR 32; [2001] SASC 62; BC200100962 at [96] 113.See 2.23, 2.24.

End of Document

.

Overlap Between Duties Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 10: Sources and Incidents of Duties > Chapter 10 Sources and Incidents of Duties

Overlap Between Duties Please click on the link below to download the entire chapter.

Equity and contract/tort

10.19 As the central incident and objective of fiduciary duties — the imposition of a duty of loyalty ‘unequalled elsewhere in the law’114. — differs from that of duties imposed by contract and tort, fiduciary duties apply in addition to existing contractual or tortious duties rather than merely reflect them. The relationship between two parties, such as that between principal and agent, involves a range of duties only some of which are fiduciary.115. Although the courts have in the past described certain agents' duties, such as the duty to give the principal information relevant to the agency, as fiduciary duties,116. and Canadian courts continue to blur the distinction between contract, tort and equity to this end,117. it is clear in English and Australian law that, if no element of disloyalty is involved, a breach of a duty by an agent or other fiduciary will be actionable through the primary bodies of law that govern the ordinary incidents of the relationship in question.118. As explained by the English Court of Appeal:119. The expression ‘fiduciary duty’ is properly confined to those duties which are peculiar to fiduciaries and the breach of which attracts legal consequences differing from those consequent upon the breach of other duties. Unless the expression is so limited it is lacking in practical utility. In this sense it is obvious that not every breach of duty is a breach of fiduciary duty.

The reason why fiduciary law focuses on loyalty is that the law of contract and tort imposes, as a general rule, no such standard, focusing instead on competence. For example, though the general law imposes upon agents a duty to exercise reasonable care and skill in carrying

Page 215 out their function,120. this duty cannot be described as fiduciary.121. This is because that aspect of their responsibilities is already prescribed by the general law; a breach of that duty may be redressed through resort to the law of tort or contract. Only those duties the law imposes to secure loyalty are fiduciary.122.

114.Moffat v Wetstein (1996) 135 DLR (4th) 298 at 315 per Granger J (Gen Div(Ont Ct)). 115.Breen v Williams (1996) 186 CLR 71 at 82; BC9604086 116.See, for example, Haywood v Roadknight [1927] VLR 512

per Brennan CJ. .

117.See, for example, McInerney v MacDonald (1992) 93 DLR (4th) 415

.

118.P D Finn, ‘The Fiduciary Principle’ in T G Youdan (ed), Equity, Fiduciaries and Trusts, Carswell, Toronto, 1989, p 28. 119.Bristol and West Building Society v Mothew [1996] 4 All ER 698 at 710 120.See 10.3, 10.4, 11.23.

per Millett LJ.

Page 2 of 5 Overlap Between Duties 121.Breen v Williams (1996) 186 CLR 71 at 93; BC9604086 per Dawson and Toohey JJ; Attorney-General v Blake [1998] Ch 439 at 455 per Lord Woolf MR; Bank of New Zealand v New Zealand Guardian Trust Co Ltd [1999] 1 NZLR 664 at 680 BC200306049 at [118]

per Gault J, at 687 per Tipping J; Rexstraw v Johnson [2003] NSWCA 287;

per Tobias JA.

122.Bristol and West Building Society v Mothew [1996] 4 All ER 698 at 712 … connotes disloyalty or infidelity. Mere incompetence is not enough’).

per Millett LJ (‘Breach of fiduciary obligation

10.20 Having said that, it is possible for the agency contract to make express and specific prescription for the no-conflict and no-profit fiduciary rules for the purpose of reinforcing and/or clarifying their application to the relationship between the parties. Moreover, a breach of fiduciary duty can produce negligent behaviour, such as where an agent who represents multiple principals fails to fulfil the duty of care owed to one or more of those principals due to the conflict between them. Yet to replicate a fiduciary duty by contract or tort in no way restricts the breadth of equitable relief available for breach of fiduciary duty, which extends beyond the common law remedy of damages for breach of contract or negligence. The terms of a contract, however, are more likely to be used to restrict the scope of a tortious or equitable duty.123.

123.See 10.22–10.26.

10.21 The agency contract can provide for the confidentiality of information derived by the agent for the purposes of the agency during its course. This obligation may, in express terms, extend for a set period following the termination of the agency contract. The fiduciary no-conflict and no-profit rules may also operate to restrict the agent's use of that information during the agency.124. As fiduciary duties arguably end with the termination of the fiduciary relationship (the agency in this case),125. in this event information communicated in the course of the agency is protected not by virtue of the fiduciary relationship but by the protection the law affords to confidential information, whether pursuant to contract or equity.126.

124.See, for example, Prebble v Evans [1910] VLR 88 (agent using information secured for the purposes of the agency to procure a lease of premises which should have been procured for his principal); Boardman v Phipps [1967] 2 AC 46 (beneficiary securing profit on shares purchased through information gained in the capacity of agent of a trust; cf G H L Fridman, ‘Agency and Secret Profits’ (1968) 3 Manitoba LJ 17). 125.See, for example, Lee v Agents Licensing Board (NT) (2011) 29 NTLR 65; [2011] NTSC 7; BC201100091 126.Attorney-General v Blake [1998] Ch 439 NZLR 680 at 690

at 452

.

per Lord Woolf MR; MacLean v Arklow Investments Ltd [1998] 3

per Gault J, delivering the judgment of Richardson P, Gault and Keith JJ (affd Arklow Investments

Ltd v MacLean [2000] 1 WLR 594

(PC)); Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222

at 234–5

per Lord Millett; Bloomsbury International Ltd (in administration) v Holyoake [2010] EWHC 1150 (Ch) at [44] [48] per Floyd J. As to the protection of confidential information by equity see Dal Pont, Equity and Trusts, Ch 6; Meagher, Gummow and Lehane, Ch 41. See further 12.59, 12.60.

Contractual exclusion of duties

Page 3 of 5 Overlap Between Duties

10.22 As in all contractual relationships, the scope of an agency relationship and thus the nature of the legal duties owed by agent to principal is determined by the express and implied terms of the contract,127. together with any applicable statutory duty. Those terms are, in addition, the chief indicia of the scope of the agent's tortious duty of care128. and those of dealings to which fiduciary duties apply. Hence, it is advisable that agency agreements be reduced to writing, in terms that make sufficiently clear the obligations of both agent and principal.129. Where there is no such writing or the written agency agreement is expressed in vague terms, the agent is duty bound to do no more (and arguably no less) than that ordinarily

Page 216 incidental to the type of agency in question.130. If the principal wishes to modify this situation, express words of expansion or limitation of the scope of the agent's duties by contract are necessary.131. The contractual terms are not, however, the sole indicia of the limitations on the agent's duties. The agency contract does not in all cases chart exclusively the perimeters of the tort duty, which may require positive steps beyond the contractually agreed task or function of the agent where this is necessary to avoid a real and foreseeable risk of economic loss to the principal.132.

127.Commonwealth Portland Cement Co Ltd v Weber, Lohmann & Co Ltd [1905] AC 66 128.Waimond Pty Ltd v Byrne (1989) 18 NSWLR 642 at 652 247

at 70

(PC).

per Kirby P; Cousins v Cousins [1991] ANZ ConvR 245 at

per Kirby P, at 250 per Meagher JA; BC9001586.

129.In this context see Dal Pont, Lawyers' Professional Responsibility, [3.45], for the reasons why a lawyer's retainer should be in writing. 130.As to the standard of care applicable to gratuitous agencies see 11.34–11.39. 131.Moore v Dent (1918) 18 SR (NSW) 455 at 475

per Ferguson J.

132.Hawkins v Clayton (1988) 164 CLR 539 at 579; BC8802597 NSWLR 642 at 652

per Deane J; Waimond Pty Ltd v Byrne (1989) 18

per Kirby P.

10.23 Rather than limit the scope of the agent's duties to his or her principal, the agency contract may purport to exclude or limit liability for its breach, which may or may not include an exclusion or limitation for negligent conduct in tort.The courts construe contractual exclusion clauses strictly (contra proferentem) against the person seeking to rely on them, that is, the agent. For example, in Darlington Futures Ltd v Delco Australia Pty Ltd133. the appellant broker, dealing on the commodities futures market, was instructed by the respondent to engage on its behalf in certain futures dealings. The respondent then sustained heavy losses as a result of certain unauthorised transactions entered into by the appellant on its behalf and sued to recover the loss. The appellant argued that it was protected by an exclusion clause that read: ‘The Client … acknowledges that the Agent will not be responsible for any loss … arising … out of any trading activity undertaken on behalf of the Client whether pursuant to this Agreement or not’. This clause was followed by one that limited the liability of the broker to $100 for claims arising ‘out of or in connexion with’ the relationship established by the agreement. The High Court unanimously held that the former clause contemplated trading activity undertaken by the appellant for the respondent with the respondent's authority, whether pursuant to the agreement or not. Their Honours reasoned that‘[i]t can scarcely be supposed that the parties intended to exclude liability on the part of the [appellant] for losses arising from trading activity in which it presumed to engage on behalf of the respondent when the

Page 4 of 5 Overlap Between Duties [appellant] had no authority to do so’.134. The exclusion clause did not, therefore, protect the appellant from liability. However, the court held that the second clause was effective to limit damages to $100, reasoning that ‘[a] claim in respect of an unauthorised transaction may nonetheless have a connexion, indeed a substantial connexion, with the relationship of broker and client established by the agreement’.135.

133.(1986) 161 CLR 500; BC8601387

.

134.Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500 at 511; BC8601387

(FC).

135.Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500 at 511; BC8601387

(FC).

10.24 Where an agency agreement imposes upon the agent a positive duty to perform a specified act or acts, an ‘exclusion’ or ‘limitation’ clause cannot, at general law, effectively deny relief to a principal for the non-performance of such acts; this would constitute illusory consideration so as to deny the existence of a contract at the outset.136. Nor can it contravene the requirements of the Australian Consumer Law as to the permissible scope of such clauses.137. Any attempt to exclude liability for dishonesty is likewise ineffective, as such a clause is contrary to public policy for obvious reasons.138.

136.As to illusory consideration see Carter, [6-36]–[6-40]. 137.Australian Consumer Law ss 64, 64A (found in Competition and Consumer Act 2010 (Cth) Sch 2) (formerly Trade Practices Act 1974 (Cth) ss 68, 68A), as to which see Carter, [14-22]–[14-25]. 138.Cf in the context of trustee exculpation clauses, see Armitage v Nurse [1998] Ch 241

.

10.25 In those agency agreements that envisage the performance of a professional service by agent to principal, such as a retainer agreement between lawyer and client, it is arguably

Page 217 inappropriate for the agreement to contain clauses exempting the agent for default in the performance of professional responsibilities.139. There are two main reasons for this.140. First, as an exclusion clause in an agency agreement is in the interests of the agent, not the principal, this places the agent in a position of conflict of interest and duty, which can only be safely surmounted by the client securing independent legal advice on the clause. Second, inherent in professionalism is the notion of public service,141. it being inconsistent with this notion that agents of a professional nature be able to exclude liability for their own professional defaults in serving their principals. These considerations perhaps carry less weight where the principal is in an equal bargaining position to the agent and, with knowledge, accedes to the exclusion or limitation clause,142. as evidenced in Darlington Futures discussed above. There the High Court placed considerable emphasis on the fact that the contract was a formal commercial contract made between business people in respect of which no question of the fairness or reasonableness of the clause arose.143.

139.Cf Wilkinson v Feldworth Financial Services Pty Ltd (1998) 29 ACSR 642 at 739–40; BC9806306

per Rolfe J.

Page 5 of 5 Overlap Between Duties 140.There is a third reason where the agent is a lawyer, in which case public confidence in the justice system may be reduced were the law to condone a negligent breach of a lawyer's duty to a client by permitting the lawyer to shelter behind a broadly worded exclusion clause in the retainer agreement, depriving the client of compensation. The relevant public policy in this regard is that any loss stemming from default by a lawyer (or other professional) in respect of a client should be borne by insurance, thereby spreading the loss among those who avail themselves of the professional's services. 141.See Dal Pont, Lawyers' Professional Responsibility, [1.30]. 142.And arguably less weight again if the principal is in a stronger bargaining position than the agent, and is fully informed as to the nature and effect of the relevant clause. 143.Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500 at 511; BC8601387

(FC).

10.26 An agency contract may purport to exclude, limit or modify fiduciary duties, although the courts will closely scrutinise any such clause so as to ensure that the principal has an informed understanding of its nature and effect. As in the case of exclusion clauses generally, the court will in any event construe it contra proferentem against the agent.

End of Document

Statutory Duties Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 10: Sources and Incidents of Duties > Chapter 10 Sources and Incidents of Duties

Statutory Duties Please click on the link below to download the entire chapter.

10.27 Statute regulates several types of agents and to this end imposes specific statutory duties, usually in addition to the duties applicable at general law, on the agents to which it applies. An example is the statutory duties imposed by the legislation that regulates real estate agents. The legislative trend is towards prescribing codes of conduct (or rules of conduct) governing estate agents (and in some jurisdictions also other forms of agents),144. which replicate aspects of the general law (though for the purpose of creating offences or for disciplinary proceedings) and add to obligations recognised at law. Another example is the statutory duties imposed on financial services licensees, such as stockbrokers and insurance brokers145. — which include a duty to do all things necessary to ensure that the financial services covered by the licence are provided efficiently, honestly and fairly, and a duty to have in place adequate arrangements to manage conflicts of interest146. — and restrictions on the use of words such as ‘independent’, ‘impartial’ or ‘unbiased’ in the

Page 218 provision of their professional services.147. There is, moreover, a general statutory proscription against financial services licensees, in or in relation to the provision of a financial service, engaging in conduct that is unconscionable.148.

144.See, for example, Agents Regulation 2003 (ACT) Sch 8; Property, Stock and Business Agents Regulation 2003 (NSW) Sch 1; Property Agents and Motor Dealers (Auctioneering Practice Code of Conduct) Regulation 2001 (Qld); Property Agents and Motor Dealers (Commercial Agency Practice Code of Conduct) Regulation 2001 (Qld); Property Agents and Motor Dealers (Motor Dealing Practice Code of Conduct) Regulation 2001 (Qld); Property Agents and Motor Dealers (Property Developer Practice Code of Conduct) Regulation 2001 (Qld); Property Agents and Motor Dealers (Real Estate Agency Practice Code of Conduct) Regulation 2001 (Qld); Property Agents and Motor Dealers (Restricted Letting Agency Practice Code of Conduct) Regulation 2001 (Qld); Private Employment Agents (Code of Conduct) Regulation 2005 (Qld); Property Agents and Land Transactions Regulations 2006 (Tas) Sch 2; Estate Agents (Professional Conduct) Regulations 2008 (Vic). 145.See 3.12, 3.13 (stockbrokers), 3.14 (insurance brokers). 146.Corporations Act 2001 (Cth) s 923A. See Baxt, Black and Hanrahan, [13.23]–[13.28]. 147.Corporations Act 2001 (Cth) s 912A. See Baxt, Black and Hanrahan, [13.63]. 148.Corporations Act 2001 (Cth) s 991A(1). A person who suffers loss or damage because a licensee contravenes s 991A(1) may recover the amount of the loss or damage by action against the licensee: s 991A(2).

10.28

Page 2 of 3 Statutory Duties Legislation applying to persons in trade and commerce generally creates duties for agents to their principals.149. The chief example is the Australian Consumer Law150. s 18 (formerly Trade Practices Act 1974 (Cth) s 52 and its state and territory fair trading equivalents), which applies to prohibit agents engaging in misleading or deceptive conduct.151. In Latella v LJ Hooker Ltd,152. an agent employed to sell the principal's property was held liable to the principal for damages where a contract for the sale of that property fell through due to the agent's misleading statement to the purchaser as to the use to which the land might lawfully be put. Had the principal been able to enforce the contract against the purchaser notwithstanding the agent's misleading conduct, the purchaser could have proceeded against the agent153. and, if the misleading statements were made within the agent's actual or ostensible authority, against the vendor.154. In Gokora Pty Ltd v Montgomery Jordan and Stevenson Pty Ltd155. an insurance broker who assured its client that the client's motor vehicle was insured, when in fact it was not, was held to have contravened the former s 52. In Dennison v Ace Shohin (Australia) Pty Ltd156. an assurance given by a stockbroker that trading in commodities futures was a secure financial investment was held to constitute misleading and deceptive conduct under the former s 52. In that the Australian Consumer Law allows persons who suffer loss or damage as a result of a breach of its proscription against misleading or deceptive conduct to recover that loss or damage against ‘any person involved in the contravention’,157. it is conceivable that a person involved in the agent's contravention can also be liable to the principal.158. The statutory prohibition on misleading or deceptive conduct is replicated in its application to the provision of a financial product or financial service by the Corporations Act 2001 (Cth) s 1041H. This is supplemented by a more specific statutory prohibition (s 1041E) on intentionally or recklessly making statements, or disseminating false or misleading information that is likely to induce persons to apply for, dispose of or acquire financial products, or to have the effect of increasing, reducing, maintaining or stabilising the price for trading in financial products on a financial market. This is of especial significance for stockbrokers, given that a breach of these statutory proscriptions is an offence159. and may also lead to civil liability.160.

149.See generally C Lockhart, The Law of Misleading or Deceptive Conduct, 3rd ed, LexisNexis Butterworths, Australia, 2011. 150.The Australian Consumer Law is found in Competition and Consumer Act 2010 (Cth) Sch 2. 151.See also Australian Consumer Law ss 29 (False or misleading representations about goods or services), 30 (False or misleading representations about sale etc of land). 152.(1985) 5 FCR 146 , a case involving the former Trade Practices Act 1974 (Cth) s 53 (now Australian Consumer Law s 30), which prohibits false or misleading statements as to land. See also Buchanan v Blairfelt Pty Ltd [1992] ANZ ConvR 202 at 203; BC9203293

per Burchett J.

153.See 24.29–24.38. 154.See 22.37–22.39. 155.(1986) 4 ANZ Ins Cas ¶60–727 at 74,334–5 per Wilcox J. 156.(1987) ATPR ¶40-793. See also Khalaf Agaiby v Darlington Commodities Ltd (1985) ATPR ¶40-535 (commodities dealer made false and misleading statements as to the current state of the diamond market). 157.Australian Consumer Law s 236(1) (as to the meaning of ‘involved’ in this context see Competition and Consumer Act 2010 (Cth) s 75B).This point is discussed at greater length in the context of agents' liability to third parties: see 24.34, 24.35. 158.See, for example, Gokora Pty Ltd v Montgomery Jordan and Stevenson Pty Ltd (1986) 4 ANZ Ins Cas ¶60-727 at 74,335–7 per Wilcox J. 159.Corporations Act 2001 (Cth) s 1311(1). 160.Corporations Act 2001 (Cth) s 1041I.

Page 3 of 3 Statutory Duties

10.29 Australian Consumer Law s 60 states that where a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with

Page 219 due care and skill. And under s 61 it provides that if the consumer makes known to the supplier any particular purpose for which the services are required or the result that he or she desires the services to achieve, there is a guarantee that those services will be reasonably fit for that purpose or are of such a nature and quality that they might reasonably be expected to achieve that result. As a result of these provisions, which parallel the former Trade Practices Act 1974 (Cth) s 74, it is conceivable that agents who negligently provide a service to their principals can be found to have breached the relevant guarantee.

10.30 Statute also imposes upon certain agents a duty to account to their principal for moneys received in the course of the agency and on the principal's behalf161. and creates criminal liability for agents who seek or receive secret commissions.162.

161.See 13.13–13.20. 162.This is discussed in Ch 14.

End of Document

Illegality Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 10: Sources and Incidents of Duties > Chapter 10 Sources and Incidents of Duties

Illegality Please click on the link below to download the entire chapter.

10.31 If a principal employs an agent to effect on the principal's behalf contracts that are null and void — in that they cannot be enforced by any legal proceeding taken by the agent for the benefit of the principal — a breach by the agent of the agency contract gives no right of action to the principal.163. The reason is that contracts that are null and void are not contracts at all and so cannot be enforced.164. Moreover, prima facie a principal loses nothing as the result of an agent's failure to conclude a contract that would have been void, and so is not entitled to damages for any such breach.165. A typical example is contracts for betting, which are void at general law166. and under statute.167. In Cheshire & Co v Vaughan Bros & Co Scrutton LJ made the following remarks in this context:168. [A] person cannot put forward as a ground for damages that his agent has not made a bet which the agent was employed to make. The bet would have been null and void, and there cannot be an inquiry into a cause of action on a null and void transaction to see what would have happened if the agent had made the bet, or if he had made it carelessly with an insolvent bookmaker, or for less than the amount at which he was instructed to make it. If there could be any such inquiry it would be treating as of some validity a transaction which the Legislature had said should be null and void. The principle therefore on which I decide this point is this: That the court cannot give effect to a transaction which Parliament has declared to be null and void.

The Cheshire case involved not a betting contract, but an insurance policy declared to be void by statute, and so an agent engaged to obtain the policy was held not to be liable to the principal for damages for breach of the agency contract. Conversely, had it been clear that the insurance policy would have been a valid and enforceable contract were it not for the insurance broker's negligence, the foregoing would not have applied.169.

Page 220

163.Cohen v Kittell (1889) 22 QBD 680 KB 240

at 250

at 682

per Huddleston B; Cheshire & Co v Vaughan Bros & Co [1920] 3

per Bankes LJ.

164.Fraser v B N Furman (Productions) Ltd [1967] 1 WLR 898

at 909

per Diplock LJ.

165.Everett v Hogg, Robinson & Gardner Mountain (Insurance) Ltd [1973] 2 Lloyd’s Rep 217 at 223 per Kerr J. 166.Hyams v Stuart King (a firm) [1908] 2 KB 696 SASR 255 at 261 Mildren J.

at 712

per Fletcher Moulton LJ; Middleton v Cavenett [1923]

per Poole J; Newham v Diamond Leisure Pty Ltd (No 2) (1994) 117 FLR 429 at 442

per

Page 2 of 2 Illegality 167.See Halsbury's Laws of Australia, Vol 3(1), G E Dal Pont and L M Butler, Betting, Gaming and Lotteries, [55-6110], [556115]. 168.[1920] 3 KB 240 at 255 . See also at 257–8 per Atkin LJ; Cohen v Kittell (1889) 22 QBD 680 (a case involving betting contracts, where a claim against a turf commission agent by his principal for failing to place the bets as directed by the principal was rejected on the ground that contracts of this kind were declared null and void by statute). 169.Fraser v B N Furman (Productions) Ltd [1967] 1 WLR 898

at 909

per Diplock LJ.

10.32 An agent's right of indemnity170. may be lost if he or she acts in circumstances known to be illegal, such as where the contract for payment for the agent's services is one tainted with illegality.171.

170.As to the agent's right of indemnity see 18.8–18.20. 171.See, for example, North v Marra Developments Ltd (1981) 148 CLR 42; BC8100118 , where the High Court denied a stockbroker an indemnity for fees for advice and services rendered in the course of a transaction that involved a manipulation of the price of shares in connection with a takeover in contravention of a statute: at 59–60 per Mason J, with whom Stephen, Aickin, Murphy and Wilson JJ concurred.

End of Document

Chapter 11 Duties of Performance Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 11: Duties of Performance Page 221

Chapter 11 Duties of Performance [Current to September 2013] Please click on the link below to download the entire chapter. Duty to Carry out the Terms of the Agency

11.2

Duty depends on what is required by the agency agreement

11.2

Duty in the case of non-contractual agencies

11.4

Duty where instructions are ambiguous

11.5

Duty to Communicate Information Relevant to the Agency Duty to disclose ‘material’ information

11.7 11.7

Nature of duty

11.7

Quality of disclosure

11.9

Information communicated by third parties in confidence Application in the context of estate agents

11.10 11.11

Information concerning the incidents of the transaction

11.13

Duration of duty

11.15

Communication to be timely

11.18

Duty to Secure Best Outcome

11.20

Standard of Care

11.23

At general law

11.23

Under statute — standard of care applicable to professionals

11.26

Relevance of agent's expertise

11.27

Expertise by virtue of position

11.27

Varying standards of care

11.31

Raising the standard of care

11.32

Page 2 of 3 Chapter 11 Duties of Performance Standard of care applicable to gratuitous agents Illustration — Duties of Insurance Brokers

11.34 11.40

Duty to secure disclosure to insurer

11.41

Duty in giving advice

11.43

Duty to follow instructions

11.46

Duty in selecting insurer

11.48

Duty to secure cost effective insurance cover

11.51

Application to persons other than brokers

11.52

Proof of causation

11.54

Measure of damages

11.55

Page 222

11.1 As agency relationships are commonly constituted by contract, the duties to which most agents are subject in carrying out the agency depend upon the express and implied terms of the agency contract. From a contractual perspective, the focus of this chapter concerns the main terms implied into a contract of agency. They include a duty to bona fide carry out the terms of the agency contract,1. the duty to communicate to the principal information relevant to the agency2. and the duty to secure for the principal the ‘best’ outcome for the purposes of the agency contract.3. Importantly, as noted in Chapter 10,4. although historically a breach of the above duties created liability only in contract, the modern view is that an agent who discharges his or her duties negligently is concurrently liable in contract and tort. Hence, a breach of the duties listed above can sound in liability for the tort of negligence as well as constituting a breach of contract. Moreover, it entitles principals in non-contractual agencies5. to a cause of action against a negligent agent. In tort, the focus is not so much the implied terms of the agency contract but what the law requires so far as care, skill and intelligence of the agent concerned in the agency relationship in question. Again, as noted in Chapter 10,6. the agency relationship of itself attracts a tortious duty of care. This chapter addresses the standard that applies to ascertain whether or not that duty of care has been attained.7. This chapter concludes by way of specific illustration, namely an account of insurance brokers' contractual and tortious duties.8.

1.

See 11.2–11.6.

2.

See 11.7–11.19.

3.

See 11.20–11.22.

4.

See 10.5.

5.

As to non-contractual agencies see 4.14–4.20.

6.

See 10.3.

Page 3 of 3 Chapter 11 Duties of Performance 7.

See 11.23–11.39.

8.

See 11.40–11.55.

End of Document

Duty to Carry out the Terms of the Agency Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 11: Duties of Performance > Chapter 11 Duties of Performance

Duty to Carry out the Terms of the Agency Please click on the link below to download the entire chapter.

Duty depends on what is required by the agency agreement

11.2 An agent is duty bound to do that which he or she is contractually engaged to do on the principal's behalf within the time frame prescribed or otherwise without unreasonable delay.9. It is no defence for an agent who fails to follow the terms of the agency to show that he or she was acting in the best interests of the principal,10. though this may affect the principal's possible entitlement to damages.11. The scope of the agent's duty, and whether or not the agent has breached the agency contract, therefore depends on what he or she has been contracted to do for the principal. For example, a commission agent can be seen as having no contractual duty as such, but only an entitlement to commission if he or she is the effective cause of the event specified in the agency agreement.12. Where that event is the sale of the principal's property, for instance, the agent cannot be liable for failing to effect that sale, having no duty to effect that event.

Page 223 Conversely, agents who are, according to the agency agreement, duty bound to perform a specific service on the principal's behalf breach the agency contract if they fail to perform that service, fail to perform it within the time, if any, specified in the contract (or if no time is specified, within a reasonable time)13. or perform it inadequately (although the last ground is usually pursued as an action in tort). For example, auctioneers must not only carry out the auction according to the terms of the agency agreement, but once the property is knocked down to the highest bidder, must ensure that an enforceable contract is entered into with the purchaser.14. Failure to do so, or any other act or omission by the auctioneer inconsistent with this duty,15. entitles the vendor to sue the auctioneer for damages for breach of contract. An auctioneer who causes a loss to the vendor as a result of negligently preparing the auction catalogue likewise commits a breach of contract.16. The converse of the duty to carry out the principal's instructions, whether contained in the agency agreement at the outset or given subsequently by the principal, is that an agent must not exceed those instructions and thereby act without authority.

9.

Turpin v Bilton (1843) 5 Man & G 455; 134 ER 641; Option Investments (Aust) Pty Ltd v Martin [1981] VR 138 142 per Lush J (affd Martin v Option Investments (Aust) Pty Ltd (No 2) [1982] VR 464

at

) (stockbrokers).

10. See, for example, Fray v Voules (1859) 1 El & El 839; 120 ER 1125 (solicitor compromising dispute on client's behalf on the advice of counsel but contrary to the client's instructions held to have breached agency). 11. An award of other than nominal damages at common law requires proof of actual compensable loss, evidence of which may be lacking if the agent has acted in the principal's best interests. However, it must be noted that an agent engaged to give professional advice is arguably duty bound to explain to a client that a proposed course of conduct directed by the client is contrary to the client's best interests. See further on this point, in the context of lawyers, Dal Pont, Lawyers' Professional Responsibility, [5.20], [5.90]–[5.135]. 12. See 1.18, 1.19.

Page 2 of 4 Duty to Carry out the Terms of the Agency 13. What is reasonable will depend upon the circumstances of the case. See, for example, Pantland Hick v Raymond & Reid [1893] AC 22 ; Monkland v Jack Barclay Ltd [1951] 2 KB 252 . Where the time stipulation is the essence of the contract, its breach entitles the principal, in addition to damages, to rescind the contract: see Carter, [3050]–[30-53]. 14. Peirce v Corf (1874) LR 9 QB 210

; Venuti v Toop Real Estate Group Pty Ltd [2004] SASC 23; BC200400199

at

[16] per Anderson J. See also Neilson v James (1882) 9 QBD 546 (stockbroker who failed to make a valid and enforceable contract in respect of the sale of shares held to have committed a breach of duty). 15. Such as, for example, accepting a return of the goods from the purchaser without the authority of the vendor: see Nelson v Aldridge (1818) 2 Stark 435; 171 ER 697. 16. Cole v Christie, Manson & Woods (1910) 26 TLR 469.

11.3 Compliance is not required when a principal's instructions or demands are not lawful. For example, in Ford v Wisconsin Real Estate Examining Board17. it was held that an agent had no duty to comply with a principal's instruction to engage in illegal racially discriminatory acts in showing the principal's property.

17. 179 NW 2d 786 at 790 (Wis 1970).

Duty in the case of non-contractual agencies

11.4 The duty to carry out the terms of the agency remains even where the agency is not created by contract. A power of attorney, for example, is not usually created by contract, lacking consideration; nevertheless, the donor retains the right later to instruct the donee not to act on the power or to act on it only in a stated way, subject to any contrary provision in the instrument creating the power.18. So a donee of a power of attorney,19. like other agents, must exercise his or her authority consistently with the donor's instructions. A donee who fails to do so or who acts in excess of that authority commits a breach of the agency.20.

18. R v Holt (1983) 12 A Crim R 1

at 14 per Tadgell J.

19. As to donees of powers of attorney as agents see 1.30. 20. This is specifically provided for by the Powers of Attorney Act 1998 (Qld) s 67, which requires an attorney who may exercise a power under a document, when exercising the power, to exercise it subject to the terms of the document. A breach of this requirement may lead to a claim for compensation: s 106.

Duty where instructions are ambiguous

11.5 There is authority to the effect that:21. … if the agent's mandate is conferred in such ambiguous terms or is so uncertain as to be fairly capable of more than one

Page 3 of 4 Duty to Carry out the Terms of the Agency construction, every act done by him in good faith which is justified by any one of those constructions is deemed to have been duly authorised although the construction adopted and acted upon by the agent was not the one intended by the principal.

Page 224 This statement does not absolve an agent from a duty to seek to clarify unclear or ambiguous instructions.22. Modern communication facilities make it inappropriate to cast on a principal liability for the actions of the agent's misinterpretation of albeit ambiguous instructions where the agent had the opportunity to seek their clarification.23. It is thus more likely that agents today will risk liability for failing to act in accord with their instructions should they not seek clarification of ambiguous instructions, than the liability be cast on the principal. This outcome is the more likely again where the agent's acts are ostensibly opposed to the principal's interests.24. In cases where the instructions are clear and incapable of being understood in more than one sense, it will be difficult if not impossible for an agent who has misunderstood the meaning to assert that he or she has nonetheless exercised reasonable skill and care.25.

21. Jones v Canavan [1972] 2 NSWLR 236

at 248 per Asprey JA. See 19.17.

22. Veljkovic v Vrybergen [1985] VR 419 at 423 per Marks J (‘if [the agent] does see the ambiguity and gambles on what was meant he or she might well be liable in negligence’). 23. See 19.18. 24. See, for example, Hallani v Hallani (2013) 16 BPR 31,203; [2013] NSWSC 91; BC201301047 (where the defendant, who was an administrator of an intestate estate, pursuant to a power of attorney granted by the deceased's widow (the plaintiff) for the purposes of administering the estate, transmitted estate funds to Lebanon in the names of the deceased's sons in the practical control of their grandfather; Lindsay J found ‘sufficient ambiguity in the terms of the [power of attorney] to have imposed on the defendant an obligation to clarify his instructions with the plaintiff, personally, before transferring estate property otherwise than to the plaintiff herself’: at [94]). 25. Chapman v Walton (1833) 10 Bing 57 at 64; 131 ER 826 at 829 per Tindal CJ; Sharp v Sphere Drake Insurance plc (The ‘Moonacre’) [1992] 2 Lloyd's Rep 501 at 524 per A D Colman QC.

11.6 If the principal's instructions, though not unclear or ambiguous, leave the agent with a discretion as regards carrying out the agency, the agent must be ‘guided by his own judgment exercised honestly and with due care and skill in what reasonably seems to him in the circumstances to be in the best interests of his principal’.26. The court must determine whether the agent's exercise of discretion in this context was a reasonable interpretation of the authority.27. Discretion of this kind, aside from the express or implied terms of a contract of agency (including custom and usage), is no licence for the agent to act negligently, in breach of fiduciary duty28. or outside customary usages of the agency in issue.

26. Jones v Canavan [1972] 2 NSWLR 236 27. Veljkovic v Vrybergen [1985] VR 419 28. Jones v Canavan [1972] 2 NSWLR 236

at 247 per Asprey JA. See also at 242 per Jacobs JA. at 423 per Marks J. As to the interpretation of agents' authority see 7.12–7.34. at 242 per Jacobs JA.

Page 4 of 4 Duty to Carry out the Terms of the Agency

End of Document

Duty to Communicate Information Relevant to the Agency Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 11: Duties of Performance > Chapter 11 Duties of Performance

Duty to Communicate Information Relevant to the Agency Please click on the link below to download the entire chapter.

Duty to disclose ‘material’ information Nature of duty

11.7 Agents owe a duty to disclose, or perhaps more accurately, communicate, to their principals all material information they possess that pertains to the agency relationship.29. What is ‘material’ is a matter of judgment on the facts of each case, though if an agent is unsure of the materiality of information, disclosure should be made. This duty should not be confused with an agent's fiduciary duty to make disclosure of conflicts of interests and unauthorised profits.30. Australian fiduciary law does not recognise any all-encompassing duty on an agent to disclose to the principal information material to the agency, only the duty to disclose information

Page 225 relating to the twin fiduciary proscriptions.31. This stems from the High Court's refusal to give to fiduciary duties a prescriptive character, such being the domain of contract and tort, not of fiduciary law.32. So an agent's failure to disclose to the principal information relevant to the agency, not being information relating directly to the fiduciary proscriptions, can sound in liability in contract or tort. It therefore merits treatment in this chapter. The duty to disclose is essential to ensuring that principals receive the full benefit of their agents' best exertions. An agent cannot, except with the consent of the principal, act for a principal and at the same time withhold from the principal any relevant knowledge the agent possesses on the subject matter of the agency. This explains why the law imputes to principals the knowledge of their agents for the purpose of liability to third parties.33.

29. Restatement (3d) §8.11(1). In Neeson v Wrightson NMA Ltd [1989] ANZ ConvR 605 at 609 Wallace J considered that an appropriate way of expressing the test is that ‘the agent should disclose what a reasonable agent would consider material in the ordinary course of business’. His Honour did, however, caution that ‘it is also important to guard against making judgments about an agent's action which in hindsight seem clear but may have been far from clear at the time and in the circumstances in which the agent was placed’: at 610. 30. As to this duty see 12.8–12.11 (disclosure of secret commissions), 12.29, 12.30, 12.47 (disclosure of conflict). 31. As to the fiduciary proscriptions see 10.6. 32. Breen v Williams (1996) 186 CLR 71; BC9604086

. See 10.7, 10.8.

33. Re Phillip-Stephan Photo Litho and Typographic Process Co Ltd (1890) 12 LR (NSW) Eq 4 at 6–7 per Owen CJ.See 22.49–22.64.

Page 2 of 9 Duty to Communicate Information Relevant to the Agency

11.8 Agents' general law duty of disclosure to their principals is, in the context of some agents, supplemented by statutory duties. An example is the statutory disclosure requirements preceding the creation of agency relationships between financial services licensees — which include insurance agents/brokers34. and stockbrokers35. — and a prospective client (as principal).36. These may include giving to the prospective client a Financial Services Guide,37. a Statement of Advice38. and/or a Product Disclosure Statement39. and, as a result of recent amendments, also disclosures of fees.40.

34. See 1.34–1.37. 35. See 1.38. 36. See generally Baxt, Black and Hanrahan, [14.17]–[14.55]. 37. Corporations Act 2001 (Cth) ss 941A(1), ss 941B(1) (the content of which is prescribed by ss 942B, 942C). 38. Corporations Act 2001 (Cth) s 946A(1) (the content of which is prescribed by ss 947B, 947C). 39. Corporations Act 2001 (Cth) s 1012A(the content of which is prescribed by ss 1013C, 1013D). 40. Corporations Act 2001 (Cth) ss 962G, 962H(inserted by the Corporations Amendment (Future of Financial Advice) Act 2012 (Cth)).

Quality of disclosure

11.9 The amount of information to be communicated by agent to principal and the level at which it is pitched depends on the relative positions of agent and principal. Particularly where the agent provides a service of a professional nature, such as legal advice or insurance or share brokerage, the agent must ensure that the principal sufficiently understands the subject matter of the agency as to be able to give proper instructions. The type and quality of disclosure will accordingly vary depending on the nature, expertise and experience of the principal. A principal who is a novice will require greater disclosure than one who is an expert or otherwise well experienced in transactions of the kind in issue. For example, in Rest-Ezi Furniture Pty Ltd v Ace Shohin (Australia) Pty Ltd41. the New South Wales Supreme Court held that a futures broker was obliged to explain to a client with no experience in that market the existence and effect of margin calls.

41. (1986) 5 ACLC 10 at 14; BC8600666 per Yeldham J. In the context of insurance brokers see 11.43–11.45. In the context of solicitors see Southern Law Society v Westbrook (1910) 10 CLR 609 at 621; BC1000042 J; Yager v Fishman and Co [1944] 1 All ER 552

per O'Connor

at 556 per Goddard LJ.

Information communicated by third parties in confidence

11.10 Agents' duty to communicate to their principals also applies in respect of information communicated within the scope of the agency by a third party to the agent in confidence,42. for an agent cannot be absolved from responsibility to his or her principal by citing a legal

Page 3 of 9 Duty to Communicate Information Relevant to the Agency

Page 226 duty owed to a third party, except with the principal's consent.43. Nor can an agent legitimately withhold information relevant to the agency on the ground that the information is confidential to another principal whom the agent represents or represented,44. although in this context the rule is not inflexible and may be moulded to take account of commercial realities and expectations of principals.45.

42. Cf Tombill Gold Mines Ltd v Hamilton [1954] OR 871 at 882 per Gale J (HC(Ont)), who remarked that ‘an agent employed to obtain information for his principal is under a duty, unless otherwise understood, to report to the principal or to use for the latter's sole benefit any information relevant to the subject-matter of the agency which he acquires and which is not impressed with a confidence’ (emphasis supplied). This cannot be correct for it is inconsistent with the agent's duty to act for the sole benefit of the principal. 43. As such, agents should not give an undertaking to maintain the confidentiality of information communicated to them in the course of their agency by third parties, because to do so is to create a conflict of interest. As to the application of this principle in the solicitor–client agent–principal relationship see Dal Pont, Lawyers' Professional Responsibility, [5.80]. Cf Restatement (3d) §8.11(2) (‘An agent has a duty to use reasonable effort to provide the principal with facts that the agent knows, has reason to know, or should know when … the facts can be provided to the principal without violating a superior duty owed by the agent to another person’), which appears to place a pre-existing duty to another party ahead of the duty to the principal. 44. See, for example, Premium Real Estate Ltd v Stevens [2009] 2 NZLR 384; [2008] NZSC 15 (discussed at 11.12) (where Blanchard J (also delivering the judgment of McGrath and Gault JJ) remarked that a (real estate) agent who has information confidential to a (former) principal that is relevant to a (current) principal should seek the former principal's permission to disclose it or otherwise disclose to the current principal that the agent cannot make full disclosure; his Honour in any case envisaged that ‘some information about a would-be purchaser may be so fundamental that an agent could not remain loyal to the vendor and still let the vendor contract with the purchaser knowing there was some kind of conflict but in ignorance of its nature, for example, if the agent was aware that the purchaser was acting as a “front” for someone to whom the agent knew the vendor would never agree to sell’: at [72]). 45. See 12.52–12.56.

Application in the context of estate agents

11.11 The agency of a real estate agent for a vendor illustrates the duty of an agent to communicate with his or her principal information material to the agency.46. To this end, the agent must disclose to the principal ‘everything known to him respecting the subject-matter of the contract which would be likely to influence the conduct of his principal’.47. The test is an objective one, determined by what a reasonable person in the position of the agent would consider, in the circumstances, as likely to influence the conduct of the principal. Hence the following judicial admonition:48. [T]he agent cannot arbitrarily decide what would likely influence the conduct of his principal and thus avoid the consequences of non-disclosure. If the information pertains to the transaction with respect to which the agent is engaged, any concern or doubt that the agent may have can be readily resolved by disclosure of all the facts to his principal.

The estate agent's duty to communicate includes making ‘full disclosure of all facts within the knowledge of the agent which might affect the value of the property’.49. So, for instance, an agent who fails to disclose to the principal that a person is interested in purchasing the property at a price within the range stipulated by the principal clearly breaches this duty, as the failure goes to the crux of the agent's function.50. More so where the agent omits to disclose a higher offer for the principal's property. Such a failure may, moreover, amount to a breach of fiduciary

Page 227 duty if the non-disclosure is the product of a sale of the property by the principal to the agent (or an associate) at a lower price.51.

Page 4 of 9 Duty to Communicate Information Relevant to the Agency

46. Real estate agents who act for purchasers owe the same duties of disclosure as do agents who are engaged by vendors, being part and parcel of agents' duty to promote the best interests of their principal. So, for example, if the transaction in which the purchaser proposes to enter is one that exhibits a special risk, such as where the vendor's guarantee of rental income is no more than an unsecured warranty, the agent is duty bound, according to standards of ordinary competence, to disclose and explain this to the purchaser. All the more so when the purchaser is relatively unsophisticated in matters of real estate dealing: Wong v 40 7527 Ontario Ltd(2000) 179 DLR (4th) 38 at 47–8 per Laskin JA (CA(Ont)). 47. Ocean City Realty Ltd v A & M Holdings Ltd (1987) 36 DLR (4th) 94

at 98 per Wallace JA (CA(BC)).

48. Ocean City Realty Ltd v A & M Holdings Ltd (1987) 36 DLR (4th) 94

at 98 per Wallace JA (CA(BC)).

49. D'Atri v Chilcott (1975) 55 DLR (3d) 30 at 39 per Galligan J (HC(Ont)). See also Re Crackle (1983) 150 DLR (3d) 371 at 378 per Nemetz CJBC (CA(BC)); Provan v HCL Real Estate Ltd [1993] ANZ ConvR 144 at 145; BC9201518 Rolfe J.

per

50. Provan v HCL Real Estate Ltd [1993] ANZ ConvR 144 at 146; BC9201518 per Rolfe J (where the agent failed to disclose to the principal that there was a substantial degree of interest in the principal's property, causing the principal to sell the property at an undervalue. Although the court awarded the principal compensation for breach of fiduciary duty, what occurred was arguably a breach of an implied term of the agent's retainer). 51. See, for example, Astron Developments Pty Ltd v Turnbull [1990] ANZ ConvR 583 at 584; McLelland J. As to breaches of fiduciary duty of this kind see 12.32–12.35.

BC9002477

per

11.12 The ostensible confluence between the common law obligation to disclose relevant information and fiduciary law is illustrated by the facts and holding in Premium Real Estate Ltd v Stevens.52. There an estate agent engaged by the respondents to sell their property failed to inform them that the purchaser (L) was a person who frequently purchased properties to resell at a profit, and instead misled them into believing that L wished to purchase the property as his residence. Five months after the dealing, L sold the property for almost $NZ1m more than the price he had purchased it from the respondents. The Supreme Court of New Zealand held that the agent, in concealing L's status as a dealer in residential property and perpetuating the misleading impression as to L's intentions, had committed a breach of fiduciary duty to the respondents.53. Their Honours sourced this from the disloyalty that the agent had thus displayed in her dealings with the respondents. In Australian law, though, any fiduciary foundation for this outcome would rest on the agent having either pursued her own interests in securing a commission ahead of her duty to the vendors (duty–interest conflict)54. or favoured the interests of another principal (the purchaser) on the assumption (rejected by the court on the facts in Stevens) that an agency relationship also existed with the purchaser (duty–duty conflict).Aside from this, the outcome would be justifiable in the Australian legal landscape by resort to a breach of the agent's common law duty to disclose material information to the principal and/or the statutory proscription against misleading or deceptive conduct.55.

52. [2009] 2 NZLR 384; [2008] NZSC 15

.

53. Premium Real Estate Ltd v Stevens [2009] 2 NZLR 384; [2008] NZSC 15 at [29] per Elias CJ (‘concealment of material information, thereby perpetuating a misleading impression given by the agent, was a breach of the obligation of loyalty’), at [68] per Blanchard J (also delivering the judgments of McGrath and Gault JJ) (‘[t]o fail to disclose a material matter about the person being introduced as a prospective purchaser – a matter objectively likely to operate on the principal's judgment – is a breach of the duty of loyalty’).

Page 5 of 9 Duty to Communicate Information Relevant to the Agency 54. It should be noted, in any case, that the engagement of commission agents, such as real estate agents, inherently involves a conflict between interest and duty, if for no other reason than that the agent is only remunerated upon the relevant transaction being effected, whether or not at a price or on terms most beneficial to the principal: see 12.40. 55. As to agents' liability to their principals for breaching the statutory proscription against misleading or deceptive conducts see 10.28.

Information concerning the incidents of the transaction

11.13 The estate agent must communicate to the vendor, without the inquiry from the vendor, everything necessary to enable the vendor to form a personal judgment as to the capacity of the purchaser to complete the purchase.56. For example, an agent is required to disclose to the vendor that the purchaser has not paid all of the deposit on entering the contract,57. that the deposit cheque has not been met when presented, or that the purchaser is unlikely to be able to obtain finance for the purchase.58. Agents are further required to ensure, through proper explanation and advice, that their principals understand the nature and effect of the sale and purchase transaction in question. This is especially so in the case of ambiguous or extraordinary terms, or where the terms are contrary to the principal's listing instructions. For example, in Georgieff v Athans59. an offer to purchase property was expressed to be subject to special conditions of a complex, uncertain and

Page 228 ambiguous nature for the purchaser's benefit. The effect of these conditions was to deny proper provision for the payment or securing of the purchase price. When the purchaser subsequently defaulted in the payment of the full purchase price, it was protected from loss by the terms of the contract. The vendors, who were Bulgarian migrants with a limited command of English and knowledge of law, sued the defendant estate agent who had acted for them in the sale, alleging that in failing to bring to their attention these special conditions, the agent had breached his duty to them thereby causing them loss. Walters J upheld the plaintiffs' claim, reasoning as follows:60. In presenting the offer to the plaintiffs for their acceptance, with the obvious problems associated with the special conditions, and more particularly with its inherent risk of their not getting the sale proceeds paid in full within a reasonable time, I think [the agent] was in breach of the duty of care arising out of the special relationship that he had to the plaintiffs.

His Honour remarked that the defendant, as an experienced land agent, should have recognised the potential danger to the plaintiffs arising from the special conditions and, given their unusual form, was obliged to advise the plaintiffs to seek independent legal advice so that their interests could be properly protected. In that the defendant at no stage suggested to the plaintiffs that it was contrary to their interests to sign the contract, or propose that the special conditions be altered in any way, he failed to exercise the proper degree of skill and care required in view of the plaintiffs' reliance on his skill, judgment and advice.61.

56. Fitzgerald v Metcalfe [1917] NZLR 486

at 487 per Edwards J.

57. Norton Manning Real Estate Pty Ltd v Tucker [1990] ANZ ConvR 261; BC8900173 (damages for failure to inform the vendor that the purchaser had not paid the deposit); Allmed Pty Ltd v Opak Investments Pty Ltd (in liq) [1995]ANZ ConvR 153 at 156; BC9400713 the full amount of the deposit).

per Mullighan J (failure to inform the vendor that the purchaser had failed to pay

58. Neeson v Wrightson NMA Ltd [1989] ANZ ConvR 605 59. (1981) 26 SASR 412

.

60. Georgieff v Athans (1981) 26 SASR 412

at 420.

at 609–10 per Wallace J.

Page 6 of 9 Duty to Communicate Information Relevant to the Agency 61. Georgieff v Athans (1981) 26 SASR 412 SASR 412

at 421–2. This finding was upheld on appeal: Georgieff v Athans (1981) 26

at 436.

11.14 Although the ruling in Georgieff v Athans was no doubt influenced by the fact that the vendor principals, because of their ethnicity and inexperience, needed to be apprised of the nature and effect of the special conditions, its ratio decidendi cannot be so circumscribed. Clearly, in any circumstances in which the principal is, through an agent, presented with a contract on terms that are disadvantageous to the principal, the agent is duty bound to bring home to the principal the practical ramifications of signing the contract, and what other options might avail the principal. To do any less is to deny the agent's function, which is to protect the interests — usually and most importantly the financial interests — of his or her principal. This duty is heightened where the principal, by virtue of some disadvantage, places greater reliance on the agent than would a principal lacking that disadvantage. In the Australian Capital Territory and New South Wales the regulations make provision for information or warnings to be given to a person to whom a real estate agent provides financial or investment advice about the sale or purchase of land.62. This includes a warning that the advice is general advice only and that its preparation has not taken into account the individual circumstances of the person and, for advice given about the purchase of land, a warning that an intending purchaser should assess the suitability of any investment in the property in the light of their own needs and circumstances, and that they can do this themselves or by consulting an appropriately licensed financial advisor.63.

62. Pursuant to Agents Act 2003 (ACT) s 83(1); Property, Stock and Business Agents Act 2002 (NSW) s 46(1); Land and Business (Sale and Conveyancing) Act 1994 (SA) s 24B(1). 63. Agents Regulation 2003 (ACT) reg 14; Property, Stock and Business Agents Regulation 2003 (NSW) cl 10; Land and Business (Sale and Conveyancing) Regulations 2010 (SA) Sch 4.

Duration of duty

11.15 The estate agent's duty to communicate material information continues at least until the time of the transaction the agent is engaged to facilitate, or until the principal's instructions have been withdrawn. Thus an agent has a duty to communicate information as to offers of purchase at all times prior to the vendor entering into a binding contract of sale. For example, in Keppel v Wheeler64. the vendor accepted an offer of purchase introduced by the agent ‘subject

Page 229 to contract’. In that contracts ‘subject to contract’ do not ordinarily create binding legal obligations, but are merely a stage in the negotiations,65. the English Court of Appeal held that the agent remained under a duty to communicate to the vendor all information relevant to the agency, including any other better offers.66.

64. [1927] 1 KB 577

.

65. Masters v Cameron (1954) 91 CLR 353; BC5400580 . The position is different if the ‘subject to contract’ clause can be construed as a binding obligation: see, for example, Branca v Cobarro [1947] 1 KB 854 . See further Carter, [502]–[5-06].

Page 7 of 9 Duty to Communicate Information Relevant to the Agency 66. Keppel v Wheeler [1927] 1 KB 577 at 590–1 per Atkin LJ, at 593 per Sargant LJ. Bankes LJ observed that although an agent is not free from responsibility merely because the principal has indicated a willingness to accept an offer, this does not mean that the agent remains duty bound to actively seek out other offers: at 586–7. One must query this statement in that, if the conduct of negotiations does not end the agent's duty to promote the principal's interests by making the requisite communications, it is unclear why it should terminate the chief purpose for which the agent is employed — to secure offers. In that the existence of more than one offer can provide a valuable negotiating tool for a principal, for an agent to cease to seek out other offers once negotiation has commenced is surely a breach of duty to the principal.

11.16 There is no continuing duty of this kind where the contract entered into is binding. To this end, contracts containing conditions precedent to their existence, such as that in Keppel v Wheeler, must be distinguished from those containing conditions precedent to performance. For example, a contract ‘subject to finance’ or ‘subject to planning approval’ is a binding contract, albeit subject in its performance to the occurrence of a further event.67. In that prior to the condition being met the vendor cannot sell the property to a third party, there is no reason why an agent should be legally bound to present to the vendor further offers. The agent is, however, bound to communicate to the vendor information to which he or she is privy regarding the purchaser's ability or willingness or otherwise to fulfil the condition,68. and information that the agency agreement itself requires to be communicated after the date of contract.

67. See Carter, [5-07]–[5-09]. 68. See, for example, Havas v Cornish and Company Pty Ltd [1985] 2 Qd R 353 Smith [2006] QCA 360; BC200607590

(discussed at 11.18); SCN Pty Ltd v

.

11.17 The duty of disclosure dictates that, at any time prior to a binding contract being entered into, the agent must ensure the principal remains apprised of any changes in market conditions. This may include bringing to the principal's attention other properties marketed in the area at higher prices, at least if the decision in John D Wood & Co (Residential & Agricultural) Ltd v Knatchbull69. is correct. There the defendant instructed the plaintiff real estate agents to sell his property (No 1). The agents recommended a £1.5m asking price, at which price it sold on 22 August. The agents were aware of a closely equivalent property put up for sale in the same street (No 4) at around the same time, the asking price for which was £1.95m, but did not disclose this to the defendant. As ‘for sale’ signs were not allowed in the area, the defendant was otherwise unaware that No 4 was for sale, let alone the asking price. The vendor of No 4 accepted an offer of £1.8m on 23 August, and it was then that the defendant became aware that No 4 had been advertised for £1.95m. The defendant alleged breach of contract or negligence by the agents for denying him an opportunity of securing a price exceeding £1.5m, and thus counterclaimed against the agents' claim for commission. Judge Heppel QC noted that any vendor in the defendant's position would be interested and concerned by the fact that an equivalent terrace house in his street was on the market at an asking price around 30% greater than his asking price, viewing this as ‘a matter any reasonable vendor would want at least to discuss with his agent’.70. In this context, his Lordship formulated the duty of the agent as follows:71.

Page 230 That the agent has a duty to exercise reasonable care when marketing a property for sale and if in the course of so doing he becomes aware of any significant event in the market that might influence his principal's instructions to inform the principal thereof and to advise him accordingly.

Page 8 of 9 Duty to Communicate Information Relevant to the Agency

The judge was satisfied that, had the defendant been informed of the asking price for No 4, he would have given instructions to the agents to negotiate further with the purchaser or, alternatively, required the agents to continue to market the property, bearing in mind that the £1.5m offer was achieved at the time when the property had been on the market for only just over a fortnight. According to his Lordship, as the expert evidence revealed that the defendant had a two-thirds chance of securing a £1.7m sale price, the value of his lost chance was £120,000 (being roughly two-thirds of £200,000), to be set off against the commission due (after making allowances for the interim use of £1.5m and the additional commission that a £1.7m sale would have generated). Importantly, the decision did not rest on a negligent valuation of the defendant's property, but rather on a failure to bring to the defendant's attention information directly relevant to the agents' function. The expert evidence indicated the value of the defendant's property to be around £1.7m, but, given that ‘valuing is a combination of art and science’,72. Judge Heppel QC accepted that the agents were entitled to a 10% margin of error. Yet the defendant's ability to prove a causative link between the agents' omission and his loss in the circumstances was arguably very much influenced by the equivalence of the properties in question. Causation is likely to prove a far greater hurdle in the usual case where properties, even if in the same street, are sufficiently distinct.

69. [2003] 1 EGLR 33; [2002] EWHC 2822 (QB). 70. John D Wood & Co (Residential & Agricultural) Ltd v Knatchbull [2003] 1 EGLR 33 at 37; [2002] EWHC 2822 (QB). 71. John D Wood & Co (Residential & Agricultural) Ltd v Knatchbull [2003] 1 EGLR 33 at 37; [2002] EWHC 2822 (QB). 72. John D Wood & Co (Residential & Agricultural) Ltd v Knatchbull [2003] 1 EGLR 33 at 35; [2002] EWHC 2822 (QB).

Communication to be timely

11.18 An agent must make the relevant communication in a timely fashion, although what is timely may vary from case to case. For example, an auctioneer engaged by a vendor to sell perishable goods has an implied contractual obligation, if the reserve price for those goods is not reached or for some other reason their sale is not effected, to inform the vendor immediately, for otherwise the goods may deteriorate and lose value.73. Also, an agent must act with especial haste where he or she knows the information to be highly material to another decision with which the principal is faced. Havas v Cornish and Company Pty Ltd74. provides a useful example. There the plaintiff listed his property with the defendant agent for $150,000. The defendant introduced a purchaser (‘A’) who signed a contract for that amount on 15 January subject to finance within four months, but shortly thereafter informed the plaintiff that A might not be proceeding with the contract. The plaintiff then relisted the property with other estate agents and received an unconditional offer of $150,000 from B. On inquiring of the defendant, the plaintiff was informed that the sale to A was proceeding. On 19 February the plaintiff inquired of the defendant as to whether she could rescind on the ground of A's failure to comply with a term of the contract, but was told she could not. On 21 February the defendant received a letter from A to the effect that A could not secure finance and sought to avoid the contract, but did not inform the plaintiff of this until 22 May. In March the plaintiff told B that she was unable to accept B's offer. The plaintiff resold her property in June for $126,000 and sued the defendant for damages. Vasta J held that the defendant had committed a gross breach of duty by failing to pass on the letter in question immediately to the plaintiff, and this would have been so even had the

Page 231 defendant not known that the plaintiff was keen to rescind and accept an alternative offer.75. His Honour phrased the relevant principle in the following terms:76. It was the obligation of the defendant, the moment that it had any knowledge that the purchaser was reluctant to fulfil the contract, to keep its principal fully informed at all times in order to allow the principal to be in a position to make a proper

Page 9 of 9 Duty to Communicate Information Relevant to the Agency judgment of the situation.

73. Rose v Lowe (1900) 2 WALR 24 74. [1985] 2 Qd R 353

.

.

75. Havas v Cornish and Company Pty Ltd [1985] 2 Qd R 353

at 360.

76. Havas v Cornish and Company Pty Ltd [1985] 2 Qd R 353

at 361.

11.19 There is arguably no need for an agent to give the vendor–principal information of a nature that the principal has earlier advised the agent need not be given. The most common instance is an offer or proposal that the principal had informed the agent would not be accepted.77. However, for the agent to secure protection from the consequences of failing to communicate what may be relevant information to the principal in this context, the principal should have provided express, ideally written, authorisation to that effect. In any event, and even in the face of such an authorisation, good practice dictates that an agent will exercise professional judgment in deciding what information to disclose. The foregoing is, in any case, subject to statutory modification; in some jurisdictions all offers must be presented as prescribed, and failure to do so may generate a criminal penalty.78.

77. Burchell v Gowrie and Blockhouse Collieries Ltd [1910] AC 614

at 625 (PC).

78. Land and Business (Sale and Conveyancing) Act 1994 (SA) ss 21, 22 (as amended by the Statutes Amendment (Real Estate Industry Reform) Act 2007 (SA) (which also prescribes formalities for offers)); Estate Agents (Professional Conduct) Regulations 2008 (Vic) regs 16, 24 (breach of the regulations is an offence: Estate Agents Act 1980 (Vic) s 94).

End of Document

Duty to Secure Best Outcome Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 11: Duties of Performance > Chapter 11 Duties of Performance

Duty to Secure Best Outcome Please click on the link below to download the entire chapter.

11.20 An agent engaged to facilitate, effect or negotiate a transaction on behalf of a principal owes a duty to the principal to foster the principal's best interests. As such, the duty can be expressed in terms of securing the ‘best’ outcome for the principal in the circumstances and within the parameters of the agent's engagement. The most common case example involves agents retained to find a purchaser for the principal's property, although the applicable legal rules are not limited to this factual situation.79.

79. For example, an agent charged with purchasing or facilitating the purchase of goods or property for a principal must exercise reasonable care and skill to secure the purchase at the lowest possible price: Ireland v Livingston (1872) LR 5 HL 395 at 407 per Blackburn LJ; Williamson v Hine [1891] 1 Ch 390 at 393 per Kekewich J. Also, there is authority to the effect that an insurance broker (agent) should secure the most cost effective insurance coverage for an intending insured (principal): see 11.51.

11.21 Where an agent, usually for a commission, is engaged to facilitate the sale of property for the principal, there are statements in the case law that the agent is duty bound to secure the ‘best’ possible price,80. ‘to obtain as high a price as possible’81. or ‘to get the best possible offer’.82. These statements cannot be taken entirely at face value, for two reasons. First, the highest price need not invariably correlate with the offer that best reflects the interests of the principal; price is simply one, albeit important, term of a contract of sale. To this end, one judge has remoulded the agent's duty as follows: ‘the agent is to act assiduously and diligently at all times to achieve a fair and reasonable price on behalf of his [principal] upon such terms and conditions as are fairly advantageous to his [principal]’.83. For instance, a real estate agent who, upon receiving an offer for the property in issue, fails to approach other known interested prospective purchasers to

Page 232 see if they can beat the offer, has breaches its duty ‘assiduously and diligently to elicit the most advantageous offer in the circumstances’.84. Second, there must remain some flexibility in prescribing, for the purposes of the agent's duty, the ‘best’ price. The circumstances, in particular the nature of the market at the time of sale, affect what constitutes the ‘best’ price. Realising the difficulty of determining whether or not a price was the ‘best’ price that could have been achieved, O'Loughlin J in Weber v Land and Business Agents Board remarked:85. [I]t should be borne in mind that the object of any sale should be the achievement of the fair market value of the property and this value should desirably, but not always, equate with a fair and reasonable price. Sometimes a fair and reasonable

Page 2 of 3 Duty to Secure Best Outcome price may be more than the fair market value and sometimes it might be less than the fair market value. Luck as well as judgment and economic factors play some part in determining the ultimate sale price of a property. But having said this, all would agree that the element of luck should be minimal and the element of judgment should be maximal.

80. Raffoul v Esanda Ltd [1970] 3 NSWR 8

at 14 per Jacobs and Mason JJA.

81. Kramer v Cooper [1975] 2 WWR 1 at 2 per Meredith J (SC(BC)). 82. Christie v Harcourt & Co [1973] 2 NZLR 139

at 141 per White J. See also Greenwood v Harvey [1965] NSWR 1489

at 1492 per Asprey J (‘best available price’ and ‘best possible price’). 83. Weber v Land and Business Agents Board (1986) 40 SASR 312

at 316 per O'Loughlin J (emphasis supplied).See

also Blackman v Thompson [1994] ANZ ConvR 279 at 280; BC9302348 per Mahoney JA (the agent is duty bound to do what ‘it can reasonably do to effect a sale to the best advantage of the principal’). 84. Markson v Cutler (2007) 13 BPR 25,127; [2007] NSWSC 1515; BC200711919 at [35] per Brereton J (where a real estate agent who made no follow up call to two other known prospective purchasers to inform them of an offer on the property was found to have breached his duty to the vendor; in so ruling, his Honour remarked that ‘[a]gents must understand that purchasers will often understate their level of interest and enthusiasm, in order to get the best price from the purchaser's perspective; and an experienced agent would necessarily be aware of that’: at [33]). 85. (1986) 40 SASR 312 at 318. See also Keppel v Wheeler [1927] 1 KB 577 at 592 per Sargant LJ (land agent employed to sell a principal's property is employed to obtain the best purchase price that could reasonably be obtained for the land).

11.22 Hence, merely because a property is sold below a professional valuation, even significantly below it, is not of itself conclusive evidence that the agent has breached his or her duty in this context. Conversely, an agent who sells at a gross undervalue, having made no attempt to find a purchaser prepared to pay a reasonable price, fails to exercise due diligence.86. Proof of lack of effort by an agent can be established by objective facts, such as lack of advertising in any form.87. Evidence of gross undervaluing is likely to consist of expert valuation and statistics as to equivalent sales. The immediate or proximate resale of the property in question at a substantially higher price may also be evidence of an agent's breach of duty. In Weber v Land and Business Agents Board, for example, a principal instructed an agent to sell his property for $38,000, and upon being advised by the agent that the property was unlikely to achieve a price exceeding $37,000, accepted an offer for that amount. The purchaser then immediately assigned his interest therein to a third party for $6000. The evidence showed that the agent made no inquiries into comparable sales or into advertising the property.O'Loughlin J held that these facts showed the agent to be satisfied to ‘make a quick sale and earn a quick commission at minimal cost to himself’.88. Although the case involved an action brought by the agents' licensing body against the agent,89. the agent's conduct clearly amounted to a breach of duty to the principal. One wonders whether the outcome would have been different had the evidence shown the agent to have made a concerted effort to find a buyer for the property. It cannot be in every case in which property is on-sold in short succession that an agent has breached his or her duty to the principal, for this fails to take into account sudden and unforeseeable movements in the

Page 233 market90. or knowledge in a purchaser with respect to the property that the agent is not, and could not reasonably be, privy to. In each case the court must consider whether a competent agent in the agent's position should have known the information in question.

Page 3 of 3 Duty to Secure Best Outcome

86. Lunghi v Sinclair [1966] WAR 172

at 176 per Virtue J.

87. If the principal has instructed the agent not to advertise in any shape or form (that is, silent listing), proof of lack of an attempt to find a buyer is more difficult, perhaps limited to witnesses (if available) who can testify that, upon making an inquiry of the agent regarding a property meeting the characteristics of the principal's, the agent did not disclose the principal's property as a purchase option. 88. Weber v Land and Business Agents Board (1986) 40 SASR 312

at 320.

89. The court held that the appropriate penalty in the circumstances was that the agent be disqualified from holding a licence as a land agent for a period of 12 months: Weber v Land and Business Agents Board (1986) 40 SASR 312 at 320. 90. Cf Re Crackle (1983) 150 DLR (3d) 371 at 378 per Nemetz CJBC (CA(BC)) (where an agent was held to have breached his duty to his principal for failing to disclose that the market was rising).

End of Document

Standard of Care Law of Agency 3ed 2013 (book)

Law of Agency 3ed 2013 (book) > Chapter 11: Duties of Performance > Chapter 11 Duties of Performance

Standard of Care Please click on the link below to download the entire chapter.

At general law

11.23 The law expects agents to act with reasonable care, skill and intelligence in performing their duties as agents.91. Agents who fail to meet this standard are prima facie negligent. That the standard so stated largely reiterates that which courts have implied into contracts of agency from the earliest times opens the door for concurrent causes of action.92. Yet in view of the fact that the standard of care is expressed in such general terms, there are curial reminders that ‘[n]o absolute standard can be laid down and each case must be judged on its own circumstances’.93. More useful is an inquiry into those factors that influence the standard of care in any given case. As a general principle, an agent who exercises the ordinary skill of a competent person exercising his or her particular profession, trade or calling meets the requisite standard.94. So it is clear that a professional agent, such as a stockbroker, is required by law to be more knowledgeable, alert and competent than the principal because he or she is an expert in the selling and buying of securities.95. In ascertaining and transmitting any information in respect of the principal's business, the stockbroker must do so with ‘reasonable accuracy’.96. However, in so far as the provision of investment advice is concerned, provided that the broker has exercised the reasonable care and skill required by law,97. and has not engaged in a conflict of interest and duty,98. mere proof of loss is not necessarily evidence of negligence. In Stafford v Conti Commodity Services Ltd99. Mocatta J acknowledged that brokers in the futures market, by its very nature unpredictable and speculative, are not to be held negligent merely because clients incur losses as a result of their advice.

91. Kelly v Rounsevell (1885) 19 SALR 89

at 92 per Way CJ; Commonwealth Portland Cement Co Ltd v Weber,

Lohmann & Co Ltd [1905] AC 66 at 70 (PC); Paul S Starr & Co Ltd v Watson (1972) 30 DLR (3d) 424 at 425–6 per Jessup JA (CA(Ont)). As to the tortious standard of care generally see Balkin and Davis, [8.1]–[8.13]. 92. See 10.5. 93. Avery v Salie (1972) 25 DLR (3d) 495

at 497 per MacPherson J (QB(Sask)).

94. Bonds & Securities (Trading) Pty Ltd v Glomex Mines NL [1971] 1 NSWLR 879 at 891 per Street J (stockbrokers); Australian Growth Resources Corporation Pty Ltd (receivers and managers appointed) v Van Reesema (1988) 13 ACLR 261 at 272; BC8800382

per King CJ (company directors); Punjab National Bank v de Boinville [1992] 3 All

ER 104 at 117 per Staughton LJ (insurance brokers); Wong v 4075 27 Ontario Ltd (2000) 179 DLR (4th) 38 at 47 per Laskin JA (CA(Ont)) (real estate agents). 95. Meddick v Cutten and Harvey (1984) 36 SASR 542

at 555 per White J.

96. Central B C Planners Ltd v Hocker (1970) 10 DLR (3d) 689 at 693 per McFarlane JA (CA(BC)) (stockbroker making misrepresentation to principal as a result of failing to properly verify a rumour).

Page 2 of 13 Standard of Care 97. Cf Elderkin v Merrill Lynch, Royal Securities Ltd (1977) 80 DLR (3d) 313 at 325–6 per Cooper JA (SC(NS)) (where a stockbroker, in advising its client to purchase and hold shares in a company that subsequently collapsed, was held not to have exercised the requisite degree of care and skill, and so breached its duty of care to the client). 98. See 12.2–12.40. 99. [1981] 1 All ER 691 at 697

.

11.24 The nature of the agency, including the nature of the service required of the agent, clearly affects the standard of care required. For example, in Norwest Refrigeration Services Pty Ltd v Bain Dawes (WA) Pty Ltd100. the High Court of Australia held that an insurance broker had not breached its duty to the insured by failing to arrange insurance coverage that was suitable for the insured because the broker was approached by an organisation representing the insured for this purpose. The broker was merely requested to arrange the insurance requested

Page 234 by the organisation and as such was subject to the standard of merely an intermediary following another's instructions.

100.(1984) 157 CLR 149; BC8400481

, discussed in more detail at 11.46, 11.47.

11.25 Expert evidence may be adduced to ascertain how an ordinarily skilled and competent professional agent would have behaved in the circumstances.101. Yet if the default in question is ‘rudimentary and obvious’, expert evidence will be unnecessary.102. The agent's failure to take a step that was obviously necessary and prudent will entitle the court to reach its own conclusion of negligence.103. For example, in Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd104. an insurance broker was held to have breached its standard of care where, having been instructed by the principal to obtain insurance cover against all contingencies including water or flood damage, it negotiated policies that excluded flood risk, and failed to disclose this to the principal (the insured).

101.Stafford v Conti Commodity Services Ltd [1981] 1 All ER 691 at 698 per Mocatta J; Onsite Contractors Pty Ltd v Old Charter Insurance Co Ltd (1985) 3 ANZ Ins Cas ¶60–632 at 78,893; BC8500819 per Foster J; Geoffrey W Hill & Associates (Insurance Brokers) Pty Ltd v Squash Centre (Allawah North) Pty Ltd (1990) 6 ANZ Ins Cas ¶61-012 at 76,768; BC9001935 per Kirby P. Cf the approach in trusts law cases involving claims that trustees have not properly invested the trust fund: see, for example, Nestle v National Westminster Bank plc [1993] 1 WLR 1260

; Re

Mulligan (deceased) [1998] 1 NZLR 481 . On this point see further G E Dal Pont, ‘Conflicting Signals for the Trustees' Duty to Invest’ (1996) 24 ABLR 140; G Watt and M Stauch, ‘Is There Liability for Imprudent Trustee Investment?’ [1998] Conv 352. 102.Geoffrey W Hill & Associates (Insurance Brokers) Pty Ltd v Squash Centre (Allawah North) Pty Ltd (1990) 6 ANZ Ins Cas ¶61-012 at 76,768; BC9001935 per Kirby P; Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541

at 556 per Kirby P.

103.As occurred in Geoffrey W Hill & Associates (Insurance Brokers) Pty Ltd v Squash Centre (Allawah North) Pty Ltd (1990) 6 ANZ Ins Cas ¶61-012; BC9001935. 104.(1991) 25 NSWLR 54

1 at 557 per Kirby P, at 564 per Mahoney JA, at 567 per Priestley JA.

Page 3 of 13 Standard of Care

Under statute — standard of care applicable to professionals

11.26 Civil liability legislation has, in most jurisdictions, impacted on the standard of care applicable to agents who are professionals, although it provides no definition of what amounts to a ‘profession’ for this purpose. Agents such as lawyers, insurance brokers/agents, stockbrokers and, arguably, estate agents, as they provide a service of a professional nature, may come within the legislation. The legislation essentially espouses the Bolam test,105. which focuses on action within the parameters of accepted professional opinion. The relevant New South Wales provision, which has counterparts expressed in similar terms in Queensland, South Australia, Victoria and Tasmania, sets the standard of care as follows:106. A person practising a profession (a professional) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.

The statutory standard has been viewed, not as superseding the common law standard of care, but as a defence that insulates professionals, including lawyers, from tortious liability where they act in accord with ‘peer professional opinion’.107. For this purpose, differing widely accepted peer professional opinions on a matter do not prevent any one or more (or all) of those

Page 235 opinions being relied on.108. Peer professional opinion need not be universally accepted,109. but cannot be relied on if the court considers that it is ‘irrational’ (in Victoria, ‘unreasonable’).110. It follows that, where the agent is a professional, the following discussion must be read subject to the terms of civil liability legislation in the above jurisdictions.

105.Named after Bolam v Friern Hospital Management Committee [1957] 1 WLR 582

at 586 per McNair J.

106.Civil Liability Act 2002 (NSW) s 5O(1). In the other jurisdictions see Civil Liability Act 2003 (Qld) s 22(1); Civil Liability Act 1936 (SA) s 41(1); Civil Liability Act 2002 (Tas) s 22(1); Wrongs Act 1958 (Vic) s 59(1). The equivalent Australian Capital Territory legislation (Civil Law (Wrongs) Act 2002 (ACT)) contains no specific provision for standard of care for professionals. The Civil Liability Act 2002 (WA) addresses standard of care only for health professionals (s 5PB). 107.Dobler v Halverson (2007) 70 NSWLR 151; [2007] NSWCA 335; BC200710215 at [59]–[61] per Giles JA, with whom Ipp and Basten JJA concurred; Sydney South West Area Health Service v MD (2009) 260 ALR 702; [2009] NSWCA 343; BC200909477

at [51] per Allsop P; Brakoulias v Karunaharan [2012] VSC 272; BC201204385

at

[12]–[50] per Macaulay J; Grinham v Tabro Meats Pty Ltd [2012] VSC 491; BC201208113 at [133] per J Forrest J. See further S Walmsley, A Abadee and B Zipser, Professional Liability in Australia, 2nd ed, Lawbook Co, Sydney, 2007, pp 449–54. 108.Civil Liability Act 2002 (NSW) s 5O(3); Civil Liability Act 2003 (Qld) s 22(3); Civil Liability Act 1936 (SA) s 41(3); Civil Liability Act 2002 (Tas) s 22(3); Wrongs Act 1958 (Vic) s 59(3). 109.Civil Liability Act 2002 (NSW) s 5O(4); Civil Liability Act 2003 (Qld) s 22(4); Civil Liability Act 1936 (SA) s 41(4); Civil Liability Act 2002 (Tas) s 22(4); Wrongs Act 1958 (Vic) s 59(4). 110.Civil Liability Act 2002 (NSW) s 5O(2); Civil Liability Act 2003 (Qld) s 22(2) (or contrary to a written law); Civil Liability Act 1936 (SA) s 41(2); Civil Liability Act 2002 (Tas) s 22(2); Wrongs Act 1958 (Vic) s 59(2).

Relevance of agent's expertise Expertise by virtue of position

Page 4 of 13 Standard of Care

11.27 The expertise that, by virtue of his or her position, an agent can reasonably be expected to possess, can impact on the relevant standard of care. For example, the standard of care expected of an estate agent or an insurance broker in respect of legal issues pertaining to the agency cannot equate to that expected of a lawyer. Nor is the standard of care the law expects of a settlement or conveyancing agent in respect of legal issues as onerous as that applicable to lawyers.111. Rather, the requisite standard is that of an ordinarily competent, skilled and knowledgeable estate agent, insurance broker or conveyancing agent in the circumstances.112. Bowstead puts it this way:113. Every agent acting for reward is bound to exercise such skill, care and diligence in the performance of his undertaking as is usual or necessary in or in the ordinary or proper conduct of the profession or business in which he is employed, or is reasonably necessary for the proper performance of the duties undertaken by him.

So, for instance, a real estate agent is not generally under a legal duty to advise as to the tax consequences of a transaction facilitated for a principal,114. whereas a lawyer may, depending on the terms and scope of the retainer, be so obliged.115. Yet an ordinarily competent, skilled and knowledgeable estate agent acting for a purchaser can, for instance, reasonably be expected to take steps to ensure that, in exchange for his or her money, the purchaser obtains a registrable instrument ensuring a title to whatever he or she has contracted to purchase.116. As such, the agent can be expected to ‘advise a prospective purchaser not to pay to the vendor the purchase money due upon the contract for the sale of the unencumbered land until a discharge of

Page 236 the mortgage has been executed and handed over’.117. This is not to fix an estate agent with knowledge of legal niceties; the issue relates to ‘the reasonableness of [the agent's] action in the particular circumstances, not as a matter of juristic science but as a matter of business prudence’.118. Similarly, insurance brokers are ‘required in the ordinary course of their business to have knowledge of aspects of the law which regulate insurable risks’.119.

111.Tenji v Henneberry & Associates Pty Ltd [2000] ANZ ConvR 205 at 208; [1999] FCA 1029; BC9904283 112.Neagle v Power [1967] SASR 373

at 377 per Bray CJ; Greaves v Baynham [1975] 3 All ER 99

Denning MR; Georgieff v Athans (1981) 26 SASR 412 Agents Board (1986) 40 SASR 312 of hindsight’).

at 103 per Lord

at 413–14 per Walters J; Weber v Land and Business

at 316 per O'Loughlin J (warning that ‘one must be aware against the dangers

113.Bowstead, p 184 (Article 40). See also How v Carman [1931] SASR 413 Sinclair [1966] WAR 172

per Lee J.

at 415 per Richards J; Lunghi v

at 176 per Virtue J; Academy Aluminum Products Ltd v McInerny Realty Ltd (1980) 113

DLR (3d) 289 at 293 per Laycraft JA (CA(Alta)); ChaudhryPrabhakar [1988] 3 All ER 718 LJ.

at 721 per Stuart-Smith

114.See, for example, CarletonTortosa, 17 Cal Rptr 2d 734 (Cal App 1993) (although the case was decided primarily on the ground that the agency agreement disclaimed any representation or recommendation regarding tax consequences and directed the client to seek tax advice elsewhere if desired, the court rejected the argument that public policy requires real estate agents to recognise and advise clients of the tax consequences of their transactions because they hold themselves out to the public as possessing special knowledge in real estate transactions). 115.See, for example, Hurlingham Estates LtdWilde & Partners (1996) 37 ATR 261 . See further G E Dal Pont, ‘The Duty of Solicitors to Give Tax Advice — A Reply’ (1999) 28 UWALR 121. Cf R K O'Connor, ‘The Duty of Solicitors to Give Tax Advice: Recent Developments’ (1998) 27 UWALR 195; ‘The Duty of Solicitors to Give Tax Advice — A Rebuttal of the Reply’ (1999) 28 UWALR 132. 116.NeaglePower [1967] SASR 373

at 383 per Chamberlain J.

117.NeaglePower [1967] SASR 373

at 385 per Mitchell J. See also at 377 per Bray CJ.

Page 5 of 13 Standard of Care 118.NeaglePower [1967] SASR 373

at 377 per Bray CJ.

119.SWF Hoists & Industrial Equipment Pty LtdState Government Insurance Commission (1990) 6 ANZ Ins Cas ¶61-002 at 76,696; BC9003514

per von Doussa J.

11.28 An agent who, in circumstances where he or she should have advised the principal to seek advice from a lawyer,120. instead gives that advice personally will arguably be subject to the standard of care of a reasonably competent lawyer.121. Moreover, as ‘it is well recognised that the standards required of … an agent for reward can and do change to meet changed conditions’, the standard applicable to an agent of a particular description may change with the passage of time. The greater the claim to professionalism, for instance, the higher the standard that can reasonably be expected by the law.122. For example, the statutory regulation and licensing of estate agents and the exclusive privilege that comes with it dictate that ‘the public have the right to expect that in carrying out their duties, land agents will apply, and may be relied upon to apply, for the benefit of the persons instructing them to buy or sell, the special skills of which they are possessed, or ought to be possessed, as land agents licensed under the Act’.123.

120.An agent can discharge his or her duty to give advice as to the legal consequences and incidents of a transaction by advising the principal to obtain legal advice: Sarginson BrosKeith Moulton & Co Ltd (1942) 73 Lloyd's Rep 104. 121.Cf Property, Stock and Business Agents Act 2002 (NSW) s 64(3), which provides that a real estate agent who fills in the salient elements of a contract for the sale of residential property, or who participates in the exchange or the making of a contract for such property, on behalf of any person who is a party or a prospective party to the contract is liable to compensate that person for any loss, damage or expense suffered or incurred by that person as a result of any negligent act or omission, or any unauthorised action, of the agent in the exercise of that function. 122.WeberLand and Business Agents Board (1986) 40 SASR 312 at 317 per O'Loughlin J (noting that increasing educational requirements supported land agents' claim to being a profession, which in turn attracted a standard of care more onerous than that which would apply to persons without such educational qualifications). Cf Re Aidinis (1975) 12 SASR 158 at 164 per Bright J (who considered that it was far from obvious that land agents and business agents have the attributes of a profession). 123.GeorgieffAthans (1981) 26 SASR 412

at 414 per Walters J.

11.29 As to the standard of care applicable to real estate agents in valuing property of (prospective) principals, it has been judicially remarked that ‘[a]n estate agent is under no obligation to sift evidence of valuation as would happen if he or she were a valuer charged with certifying as to the true value of the property’.124. This is because a real estate agent does not necessarily have the formal qualifications required of a valuer, and may not be held out as possessing valuation expertise of that kind. But in that real estate agents commonly give to (prospective) principals an indication of the value of their property, estate agents are not immune from liability for losses caused by a negligent valuation. To this end, as real estate agents are held out as reasonably competent to carry out the business of buying and selling real estate on behalf of others, the law expects them ‘to be generally aware of sales in the district and the way in which trends were moving and … to be able to fix a range of prices being a wider range than would be fixed by a valuer who had gone to particular trouble with respect to the proper valuation of a property at a particular date’.125. In any event, mathematical precision in valuation is usually impossible, and so a determination as to whether or not an agent (or valuer) has met the applicable standard of care is informed by whether, according to expert evidence, the valuation is within a permissible range.126.

Page 237

Page 6 of 13 Standard of Care In Queensland statute requires an estate agent who provides to a person wishing to sell residential property information about the price at which the property is likely to be sold, to give the person a copy of a comparative market analysis127. for the property or, if a comparative market analysis cannot be prepared for the property, a written explanation showing how the agent decided the market value of the property.128. In Victoria an estate agent is statutorily required, in advance of obtaining a person's signature to an engagement to sell any real estate on behalf of the person, to ensure that the engagement states the agent's estimate of the selling price in the form prescribed.129. In both Victoria and South Australia, if a selling price estimate is expressed as a price range, the difference between the upper and lower limits of the range must not exceed 10% of the amount of the lower limit of the range.130.

124.HatzigeorgalisAnge (SC(NSW), Young J, 17 June 1991, unreported) BC9101888 at 4. 125.HatzigeorgalisAnge (SC(NSW), Young J, 17 June 1991, unreported) BC9101888 at 5. 126.HatzigeorgalisAnge (SC(NSW), Young J, 17 June 1991, unreported) BC9101888 at 14, 19. See further S Walmsley, A Abadee and B Zipser, Professional Liability in Australia, 2nd ed, Lawbook Co, Sydney, 2007, pp 897–903 (in the context of valuers). 127.As defined in Property Agents and Motor Dealers Act 2000 (Qld) s 574A(5). 128.Property Agents and Motor Dealers Act 2000 (Qld) s 574C(1)s 574C(2), (a failure to do so is an offence). 129.Estate Agents Act 1980 (Vic) s 47A(1), 47A(2)(breach of this requirement is an offence). 130.Estate Agents Act 1980 (Vic) s 47A(3); Land and Business (Sale and Conveyancing) Act 1994 (SA) s 24A(2)(b) (see John R Ring Pty LtdCommissioner of Office of Consumer and Business Affairs (2009) 104 SASR 163; [2009] SASC 174; BC200905563 ). Breach of these requirements is an offence and, in South Australia upon the commencement of the Statutes Amendment (Real Estate Reform Review and Other Matters) Act 2013 (SA), will sound in the forfeiture of the agent's commission: Land and Business (Sale and Conveyancing) Act 1994 (SA) s 24A(3), 24A(4).

11.30 A practice by some estate agents of under-quoting the likely selling price of property listed with them131. has led, inter alia, to statute in several jurisdictions making it an offence for an agent to make false representations as to prospective selling prices.132. In some jurisdictions, the relevant regulatory office can require an estate agent to supply evidence as to the reasonableness of the estimated selling price, and makes it an offence to fail to comply with this requirement.133.

131.Being a practice found to breach the statutory proscription against misleading and deceptive conduct (as to which see 24.29–24.38) in Australian Competition & Consumer CommissionGary Peer & Associates Pty Ltd (2005) 142 FCR 506; [2005] FCA 404; BC200502001

.

132.The detailed provisions vary from jurisdiction to jurisdiction, but all are directed to the object stated in the text: Agents Act 2003 (ACT) s 88 (refers to ‘dishonest representations’, as defined in s 88(3)); Property, Stock and Business Agents Act 2002 (NSW) ss 72, 73; Land and Business (Sale and Conveyancing) Act 1994 (SA) s 24A(2)(a); Estate Agents Act 1980 (Vic) s 47B (limited to false representations to a seller or prospective seller). 133.Agents Act 2003 (ACT) s 89; Property, Stock and Business Agents Act 2002 (NSW) ss 74, 75; Estate Agents Act 1980 (Vic) s 47D.

Varying standards of care

11.31

Page 7 of 13 Standard of Care It cannot be said categorically that all agents of a particular description owe the same standard of care to their principals. For example, Luxmoore-MayMessenger May Baverstock (a firm)134. involved the sale of two small paintings belonging to the plaintiffs by the defendant provincial auctioneers for around 1% of their sale price at an auction conducted by city auctioneers some five months later. The English Court of Appeal rejected the plaintiffs' claim that the provincial auctioneers had been negligent in valuing the paintings and accepted the following submissions of the defendant, namely that:135. (1) the required standard of skill and care allows for differing views, and even a wrong view, without the practitioner holding that view (necessarily) being held in breach of his duty, (2) the standard is to be judged by reference only to what may be expected of the general practitioner, not the specialist, here provincial auctioneers, rather than one of the leading auction houses, and (3) compliance with the required standard is to be judged by reference to the actual circumstances confronting the practitioners at the material time, rather than with the benefit of hindsight.

Page 238 Notwithstanding the massive difference in sale prices, their Lordships noted that the valuation of pictures of which the artist is unknown ‘pre-eminently involves an exercise of opinion and judgment’, and so where the valuer ‘has done his job honestly and with due diligence’, a court should be ‘cautious before convicting him of professional negligence merely because he has failed to be the first to spot a “sleeper” or the potentiality of a “sleeper”’.136. The Luxmoore-May case presents an extreme example of differing standards and so should not be interpreted so as to confer upon general agents (or ‘practitioners’) blanket protection against claims in negligence.The standard of care depends on the facts of each case and, other than in the context of certain collectibles, such as paintings, coins and antiques, it is difficult to imagine a case in which even the most general of practitioners would avoid liability in negligence for an underestimation of value anywhere near approaching that in the Luxmoore-May case.

134.[1990] 1 All ER 1067. 135.Luxmoore-MayMessenger May Baverstock (a firm) [1990] 1 All ER 1067 LJ and Sir David Croom-Johnson agreed.

at 1075–6 per Slade LJ, with whom Mann

136.Luxmoore-MayMessenger May Baverstock (a firm) [1990] 1 All ER 1067 and Sir David Croom-Johnson agreed.

at 1076 per Slade LJ, with whom Mann LJ

Raising the standard of care

11.32 What is clear, and implicit in the decision in Luxmoore-May, is that tort law recognises that persons who hold themselves out as specialists in a particular field, or in some other way as having greater expertise in an area of endeavour than persons who ordinarily carry out a service of that kind, are subject to a higher standard of care.137. Persons who seek to position themselves above the average should be subject to a standard of care commensurate with that position, if for no other reason than they raise in prospective principals a reasonable expectation of a higher standard of care. That persons who profess special expertise often charge a higher fee for their service than those who profess no such specialisation supports this argument. An example is the professional agent who holds himself or herself out as possessing special expertise in a particular field. Regarding lawyers who so hold themselves out, the Full Federal Court in Yates Property Corporation Pty Ltd v Boland made the following remarks:138. When a firm, whether large or small, has developed a particular expertise in some area of the law it is difficult to see why as a matter of principle the standard of care in accordance with which that firm should carry out its professional work should be judged by reference to the standard of care of an ordinary practitioner. Indeed there is every reason to think that this should not be the case … When a client retains a firm that is or professes to be specially experienced in a discrete branch of the law that client is entitled to expect that the standard of care with which his retainer will be performed is consistent with the

Page 8 of 13 Standard of Care expertise that the firm has or professes to have. Such a client would no doubt be justifiably dismayed if he was told that the firm he has retained because of its experience is only required to act in accordance with the standards laid down for a solicitor who has only a general or even only a little knowledge of the law that is to be applied to the facts of the client's case … The standard [of care] should reflect the fact that within any one calling practitioners have or profess to have varying degrees of expertise. The standard of care and skill

Page 239 required of such a person must bear some relationship to that expertise. In the case of a solicitor who is an expert in a particular branch of the law the requirement should be that the solicitor must carry out his retainer as would a reasonably competent solicitor who is an expert in that particular area of law.

Their Honours considered that this higher standard of care was imposed by tort law, not as an implied term of the contract of retainer,139. though noting that should this be incorrect, there would be implied into the contract of retainer ‘an obligation to conform with the standard of skill and care commensurate with the expertise the solicitor has or professes to have’.140. Where, for example, agents of a particular class have some means of specialist accreditation,141. this is evidence of professed specialist expertise. Yet the court in Yates called for a higher standard not only if the lawyer (agent) professes a specialist expertise, but also if he or she possesses that expertise. This raises the spectre of an agent being subject to a higher standard of care without ever having professed any special expertise, simply because other evidence indicates that he or she has or should have such expertise sufficient to justify the application of that standard. The key to what such evidence may comprise arguably lies in the reasonable expectation of the principal in the circumstances. For instance, the nature of the firm conducting the agency, coupled with the price charged for its services, may create in a principal, without any profession or holding out of expertise by the agent, an expectation of a standard of care exceeding that which would ordinarily apply.142.

137.Balkin and Davis, [8.27]. A similar conclusion can also be reached on the grounds of contractual implication; implied into an agency contract entered into pursuant to professions of special expertise by the agent is a term requiring the agent to exercise reasonable care commensurate with that expertise. 138.(1998) 85 FCR 84 at 105; BC9803621

(emphasis supplied) (revd on appeal but without casting doubt on this point:

Boland v Yates Property Corporation Pty Ltd (1999) 167 ALR 575; BC9908012 General Insurance Ltd (2001) 111 FCR 58; [2001] FCA 103; BC200100352

). See also Wakim v HIH Casualty & at [154], [162] per Einfeld J; Carmody v

Priestley & Morris Perth Pty Ltd (2005) 30 WAR 318; [2005] WASC 120; BC200504173

at [106] per Hasluck J;

Palios Meegan & Nicholson Holdings Pty Ltd v Shore (2010) 108 SASR 31; [2010] SASCFC 21; BC201006247

at

[39]–[41] per Gray J; Goddard Elliott (a firm) v Fritsch [2012] VSC 87; BC201201151 at [412]–[417] per Bell J. The New South Wales Court of Appeal in Heydon v NRMA Ltd (2000) 51 NSWLR 1; [2000] NSWCA 374; BC200007998 endorsed the concept of a variable standard of care, at [146] per Malcolm AJA, noting that for lawyers ‘professing to have a special skill in a particular area of the law, the standard of care is that of the ordinary skilled person exercising or professing to have that special skill’: at [146] (emphasis supplied). See also at [362] per McPherson AJA (‘There is only one standard, which is the standard appropriate to a member of the profession with the relevant specialist skills’ (emphasis supplied)). This does not mean that lawyers (or agents generally) professing that special skill are judged by a higher standard in these areas than the ordinary skilled person exercising or professing to have that special skill, as otherwise they would be penalised for being better at doing the same work. 139.As had been held by Megarry J in Duchess of Argyll v Beuselinck [1972] 2 Lloyd's Rep 172. 140.Yates Property Corporation Pty Ltd v Boland (1998) 85 FCR 84 at 106; BC9803621

(revd on appeal but without

casting doubt on this point: Boland v Yates Property Corporation Pty Ltd (1999) 167 ALR 575; BC9908012

).

141.As exists in several jurisdictions for lawyers: see Dal Pont, Lawyers' Professional Responsibility, [20.40]. 142.Messagemate Australia Pty Ltd v National Credit Insurance (Brokers) Pty Ltd (2002) 85 SASR 303; [2002] SASC 327; BC200205928

at [85] per Williams J (in the context of insurance brokers). Cf Sharp v Sphere Drake Insurance plc

Page 9 of 13 Standard of Care (The ‘Moonacre’) [1992] 2 Lloyd's Rep 501 at 523 per A D Colman QC (distinguishing the non-specialist marine broker from the specialist broker).

11.33 The practical effect of raising the tortious standard of care is to make it easier for the principal to establish a breach of the agent's duty of care; it may be negligent for an agent professing special expertise to act or fail to act in a certain way, whereas it may not be so in the case of an agent professing no such expertise. Of course, variations in standard of care do not endear themselves to mathematical accuracy in assessment. In each case it is a matter for the court to make an assessment of the evidence, usually expert evidence, to ascertain if the agent in question has met the applicable standard, being ‘the standard demanded by the circumstances of that particular case’.143.

143.Houghland v R R Low (Luxury Coaches) Ltd [1962] 1 QB 694 context of bailment, but is equally applicable to agency).

at 698 per Ormerod LJ (statement made in the

Standard of care applicable to gratuitous agents

11.34 As the standard of care applicable to an agent can be raised, the converse question also arises: can it in any circumstances be lowered? If possible, this would have the effect of making it more difficult for a principal to establish a breach of the agent's duty of care. Aside from any issue of contractual disclaimer or a clause limiting or excluding liability for negligence, the issue is most starkly illustrated by the gratuitous agency. In Georgieff v Athans,144. involving an agent carrying on the business of an estate agency, Walters J remarked that the position of an agent for reward ‘differed significantly’ from that of a gratuitous agent, upon whom there could be imposed no greater duty than to exercise ‘such care and diligence as persons ordinarily use in their own affairs, and such skill as he has’.145.

Page 240

144.(1981) 26 SASR 412 at 413

.

145.Citing Beal v South Devon Rail Co (1864) 3 H & C 337 at 341; 159 ER 560 at 562 per Crompton J. See also Wilson v Brett (1843) 11 M & W 113; 152 ER 737; Moffatt v Bateman (1869) LR 3 PC 115 .

11.35 Yet it is unclear in what way this supposedly lower standard of care differs from that of an agent for reward.146. Moreover, it raises difficult policy issues. Although it can be argued that persons who benefit from a free service cannot reasonably expect the same quality of service as those who pay for that service, such an argument appears contrary to prevailing social mores. It also fails to adequately address the situation where an agent is paid by a third party rather than the principal. Especially in the context of agency relationships of a professional nature, it would be contrary to public policy to deny the poor access to a reasonable standard of service. For instance, in the context of the lawyer–client agent–principal relationship, the same standard of care applies to pro bono or legal aid work as to

Page 10 of 13 Standard of Care paid work.147. And, more generally, in a business-type environment, as opposed to a merely social or familial one, there is arguably a reasonable expectation that an agent, whether or not he or she is paid, will perform at the legally required standard.148. In other words, it is appropriate that there be a minimum standard of care equating to that expected by a competent agent in the circumstances, which cannot be reduced by the fact that the agent acts gratuitously. In Norwest Refrigeration Services Pty Ltd v Bain Dawes (WA) Pty Ltd,149. for example, Brennan J held that an organisation that had taken upon itself the role of arranging insurance for its members, though not in the business of insurance brokerage and acting gratuitously in performing this service, nonetheless owed to its members in carrying out the service a duty to advise the insured that the insurance requested could not be obtained and to appreciate the consequences of a failure to advise of that fact promptly.150. His Honour noted that the organisation was not subject to the standard of care of a person carrying on a business of insurance brokerage, but that the standard he had imposed required no special skill or competence.151. Brennan J found ‘no ground for exempting a gratuitous agent from such a duty once he enters upon the carrying out of the commission entrusted to him and knows or ought to know that he cannot fulfil it’.152.

146.Cf Avery v Salie (1972) 25 DLR (3d) 495 , where the Saskatchewan Queen's Bench held that an estate agent acting gratuitously owed the same standard of care as a contractual agent in so far as arranging mortgage finance was concerned. In this regard, MacPherson J remarked that ‘once a gratuitous agent starts to perform the agency his duty is not less than that of a contractual agent and, therefore, the distinction is of no matter’, but added that ‘[n]o absolute standard can be laid down and each case must be judged on its own circumstances’: at 497. 147.Chancliff Holdings Pty Ltd v Bell [1999] FCA 1783; BC9908390

at [16] per Lee J; R v Japaljarri (2002) 134 A Crim

R 261; [2002] VSCA 154; BC200205806 at[71] per Eames JA; Milu v Smith [2004] QSC 27; BC200400567 [17] per Moynihan J; R v Cunningham [2010] 1 SCR 331; [2010] SCC 10 at [40] per Rothstein J.

at

148.See, for example, Zurich Insurance (Singapore) Pte Ltd v B-Gold Interior Design & Construction Pte Ltd [2008] 3 SLR(R) 1029; [2008] SGCA 27 (agent who agreed to gratuitously assist in procuring a policy from other insurance companies, in circumstances where the agent's insurance company was unable to provide the required coverage, found to have breached his duty of care, it being inconsequential that the agent acted gratuitously). 149.(1984) 157 CLR 149 at 168–70; BC8400481

. This case is discussed in more detail at 11.52, 11.53.

150.This represents part of the duty of an insurance broker: see 11.43–11.45. 151.Norwest Refrigeration Services Pty Ltd v Bain Dawes (WA) Pty Ltd (1984) 157 CLR 149 at 168–70; BC8400481 152.Norwest Refrigeration Services Pty Ltd v Bain Dawes (WA) Pty Ltd (1984) 157 CLR 149 at 169; BC8400481

. .

11.36 The English Court of Appeal's decision in Chaudhry v Prabhakar,153. although not entirely satisfactory in its reasoning, provides an interesting illustration in this respect. There the plaintiff, who knew little about motor vehicles, asked the defendant, a close friend who was more knowledgeable in this context, to find her a suitable second-hand motor vehicle to purchase. The plaintiff stipulated that the car must not have been in an accident. The defendant located a low mileage vehicle for sale at a panel beater's premises154. and, thinking the vehicle to be in good condition, advised the plaintiff to buy it, untruthfully stating the vendor

Page 241 to be a friend of his. It later became apparent that the vehicle had been involved in a serious accident, had been shoddily repaired in an attempt to conceal its faults, and was unroadworthy. The plaintiff's action against the defendant for breach of the duty to take reasonable care was upheld by the trial judge. On appeal, the defendant conceded that he owed a duty of care to the plaintiff, but argued that the trial judge had imposed too high a standard of care in view of the fact that the defendant had acted as a gratuitous agent. The

Page 11 of 13 Standard of Care defendant submitted that an unpaid agent owed only a duty to take such care towards the principal ‘as he would in relation to his own affairs and to exhibit such skill as he actually possesses’ — an entirely subjective standard. As the defendant testified that he would have bought the vehicle himself, the defendant argued that this should satisfy the relevant standard. The court saw through this argument, the upshot of which would be effectively to deny all principals of a gratuitous agency a claim against the agent in negligence if the agent simply testifies that he or she took reasonable care. Stuart-Smith LJ cited the following extract from Bowstead155. as identifying the degree of care and skill owed by a gratuitous agent:156. [S]uch skill and care as persons ordinarily exercise in their own affairs or, where the agent has expressly or impliedly held himself out to his principal as possessing skill adequate to the performance of a particular undertaking, such skill and care as would normally be shown by one possessing that skill.

This, according to his Lordship, was an objective standard, ‘not simply to be measured by the agent's honest statement that he would have similarly acted if he had been transacting the business on his own account, however foolish that may be’, but ‘that which may reasonably be expected of him in all the circumstances’.157. Stocker LJ likewise adopted an objective standard, observing that were the defendant's contention accepted ‘the duty so expressed becomes virtually meaningless and would cover circumstances in which no care at all had been taken’.158. The relevant circumstances were identified by Stuart-Smith LJ as follows:159. Where the agent is unpaid, any duty of care arises in tort. Relevant circumstances would be the actual skill and experience that the agent had, although, if he has represented such skill and experience to be greater than it in fact is and the principal has relied on such representation, it seems to me reasonable to expect him to show that standard of skill and experience which he claims to possess. Moreover, the fact that principal and agent are friends does not in my judgment affect the existence of the duty of care, although conceivably it may be a relevant circumstance in considering the degree or standard of care.

His Lordship noted that, in determining whether a duty of care arises, the relationship between the parties is material, in that if they are friends it may be that the advice or representation is made on a purely social occasion such as to show that there has been no voluntary assumption of responsibility. Stocker LJ similarly stated that in the absence of other factors giving rise to a duty, the giving of advice sought in the context of family, domestic or social relationships does not give rise to a duty of care in respect of such advice.160. Yet that the actions of the defendant caused a contract to come into existence between the plaintiff and a third party (the vendor) was, in Stuart-Smith LJ's opinion, ‘powerful evidence that the occasion is not a purely social one’.161. Thus the whole court, including May LJ who offered a concurring judgment, held that the defendant had not met the requisite standard, and affirmed the judgment of the trial judge.

Page 242

153.[1988] 3 All ER 718

.

154.The panel beater vendor was also sued, although for breach of the implied term that the motor vehicle was of merchantable quality. 155.Bowstead (15th ed, 1985), p 152. In subsequent editions the editors have modified this statement to read as follows: ‘A gratuitous agent will be liable to his principal if in carrying out the work he fails to exercise the degree of care which may reasonably be expected of him in all the circumstances’: Bowstead, p 191 (Article 42). 156.Chaudhry v Prabhakar [1988] 3 All ER 718

at 721.

157.Chaudhry v Prabhakar [1988] 3 All ER 718

at 721. See also at 723 per Stocker LJ.

Page 12 of 13 Standard of Care 158.Chaudhry v Prabhakar [1988] 3 All ER 718

at 724.

159.Chaudhry v Prabhakar [1988] 3 All ER 718

at 721.

160.Chaudhry v Prabhakar [1988] 3 All ER 718

at 723.

161.Chaudhry v Prabhakar [1988] 3 All ER 718

at 722.

11.37 The main difficulty with the judgment in Chaudhry v Prabhakarconcerns why it was necessary to construe the relationship between the plaintiff and the defendant as one of agency.162. The case could have been decided simply on the ground of negligent misstatement, pursuant to which persons who give advice on a business or professional transaction in circumstances where it is reasonable for the recipient of the advice to seek (or to accept) and to rely upon that advice, are subject to a duty of care to ensure that the advice is correct.163. A finding of agency was not required to establish the defendant's duty, although assuming such an agency exists, the case can be seen as presenting an example of a non-contractual agency.164.

162.Perhaps a reason for the court using agency as a crutch upon which to base the defendant's duty rather than merely negligent misstatement is English courts' traditional requirement that the person giving advice for the purpose of the doctrine of negligent misstatement have expertise in the field of advice (following Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964]AC 465 ) (albeit since loosened somewhat: see M A Jones (gen ed), Clerk and Lindsell on Torts, 20th ed, Sweet & Maxwell, London, 2010, pp 501–2). Australian law no longer prescribes such a requirement: Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) (1981) 150 CLR 225; BC8100102

.

163.Shaddock & Associates Pty Ltd v Council of the City of Parramatta (No 1) (1981) 150 CLR 225; BC8100102

.

164.As to non-contractual agencies see 4.14–4.20.

11.38 Interestingly, the reason for there being no contract of agency on the facts was precisely the basis for the defendant's argument for the lowering of the standard of care: the absence of consideration. In this respect, StuartSmith LJ reasoned that the fact that an agent is paid is one of the relevant circumstances in determining whether or not a duty of care arises, in that payment creates a contractual relationship (being the element of consideration), in which case there may be express terms upon which the parties can rely.165. This, however, obscures rather than clarifies the matter. Consideration need not be monetary and it can hardly be said that the position of the plaintiff in Chaudhry v Prabhakarwould have been any stronger had she promised the defendant a bottle of champagne or a meal in return for his services. Hence the issue of consideration (that is, payment) was an aside and not the crux of the decision. The main issue was whether a social situation could give rise to legal responsibility, not whether the absence of payment denied it. In any event, the presence of consideration in a social situation rarely carries with it express contractual terms.

165.Chaudhry v Prabhakar [1988] 3 All ER 718

at 721.

Page 13 of 13 Standard of Care

11.39 Importantly, Chaudhry v Prabhakarcannot be read as authority that social relationships create agency duties as a matter of course. Though one can share some sympathy with the defendant, who one may imagine had no inkling that his advice would attract legal responsibility, the fact remains that his acts and omissions evidenced little or no care in the performance of the agreed task. Counsel for the defendant argued that as the defendant had insufficient expertise to determine whether or not the vehicle had been involved in an accident, he could not be held liable for breaching his duty of care in this respect. Moreover, had the defendant asked the vendor whether the vehicle had been involved in an accident, the vendor may indeed have replied, albeit untruthfully, that it had not. Stuart-Smith LJ conceded that had the defendant asked that question of the vendor and ‘reasonably believed’166. the response, he would have discharged his duty to the plaintiff. As the defendant did not ask this question, he had failed to properly fulfil his duty.167. Yet it is somewhat simplistic to characterise the defendant's breach as simply not asking the right question. The better view is that of Stocker LJ, who considered that the defendant's failure to inquire whether the vehicle had been involved in an accident did not itself establish the breach ‘provided that he had reasonable grounds for belief that it had not and if he had such reasonable grounds it would not necessarily follow that his assertion to this effect to the plaintiff amounted to actionable negligence’.168. However, the circumstances — namely that

Page 243 the plaintiff did not know the vendor, did not ask for or examine registration documents or the prior history of the vehicle and purchased the vehicle from a person in the trade of panel beating — should have put the defendant on inquiry. One wonders what would have been the case had the plaintiff not prescribed that the vehicle be accident free, or had alternatively prescribed that the mileage be genuine. One must also wonder whether a different outcome would have been reached had the vendor not been a panel beater. In each case, the conduct that fulfils the requisite standard must depend entirely on the circumstances, such as the instructions of the principal and, as a consequence, the principal's reasonable expectations of the agent's expertise and function. It must also be noted that in non-professional and quasi-social agency situations, such as that arising in Chaudhry v Prabhakar, the court cannot rely on expert evidence as to the requisite standard as in the case of professional and quasi-professional agencies. The standard itself is entirely factually dependent.

166.His Lordship used this terminology because, in his opinion, the plaintiff had showed ‘a remarkable degree of naivety’ in view of the fact that the vendor was a panel beater: Chaudhry v Prabhakar [1988] 3 All ER 718 167.Chaudhry v Prabhakar [1988] 3 All ER 718

at 723.

168.Chaudhry v Prabhakar [1988] 3 All ER 718

at 724.

End of Document

at 723.