Nick Dowse Agency
Agency – Structure of Answer
1. Draw a diagram
a. Who is the principal
b. Who is the agerd
c. Who is the 3 party
2. Make a note of who is trying to enforce against who
a. Is the 3 party wanting to sue for the balance of the K price?
i. If they fail, they will want to sue the agent for breach of warranty of authority.
b. Is the principal wanting to ratify but the 3 party is resisting?
c. Does the conduct of the agent need to be attributed to the corporate principal?
3. State the issue
a. “Did [agent] have [principal’s] authority to [do the thing done]?”
b. Be very specific.
4. Definition of agency (brief) rd
a. Where one person enters into transactions with 3 parties on behalf of his principal
b. Whether an agency exists is a question of law, examined objectively (Garnac).
5. Preliminaries (only if relevant)
a. The principal must have the legal capacity to perform the act done through the agent
i. In the case of a corporation, s 124(1) Corporations Act says that they are natural
persons (thus a corporation can be an agent).
b. An agent does not require contractual capacity to act for another (Watkins v Vince)
c. The burden of proof rests on the person seeking to enforce the contract made on the
basis of the agency (Robinson v Tyson)
d. A prrdcipal may be liable in tort for the careless conduct of an agent causing damage to
a 3 party even if the agent is not an employee, and even if there is an express
stipulation not to do the tortious thing done (Hollis v Vabu).
i. Principal can be liable for improper mode of performing acts that are within the
authority of the agent, irrespective of whether the principal authorised the
improper mode, and even if the principal had forbidden the wrongful act (Scott v
1. This is because the principal has put the agent in a situation where the
tort could occur, so the principal should be liable.
6. Did the agent have the authority to do the particular thing done?
a. Actual Express Authority (AEA)
i. Whether the act done was within the agent’s AEA will depend on a construction
of the terms in the contract, or instructions given by the principal (Tobin v
ii. With AEA, authority will usually be given in a contract, or by spoken word.
iii. An agency agreement does not have to be in writing, except in the case of land
contracts, which may require some writing under s 11 PLA.
iv. If there is some written agreement, the scope of the agent’s authority will be
governed by a construction of the terms of that document.
1. If the agency is created by a power of attorney, the deed will be strictly
construed (Robin v Broadbent).
2. If it is not a deed under seal, or is given orally, then a more liberal
construction will be applied.
v. AEA can only be created by consent by the principal (Garnac).
vi. Apply: did the agent act within its express authority? If yes, principal will be
bound. If not, principal will not be liable on the K.
Page 1 of 12 Nick Dowse Agency
b. Actual Implied Authority (AIA)
i. In the absence of any AEA, an agency may arise on the basis of an implied
agreement as to authority based on the parties’ conduct (Norwich).
1. If there is an express limitation on what the agent can do, there cannot be
an implied authority to go beyond that (Overbrook).
a. However, there may still be a finding of ostensible authority if
ii. Incidental Implied Authority
1. This type of AIA exists because the act performed by the agent is
regarded as necessarily or ordinarily incidental to the acts that have been
expressly authorised (ie it goes without saying).
2. For example, with a real estate agent, if employed to find a purchaser for
the property, it will be incidental to show the prospective purchaser the
property and to supply info about it etc. But it will not be incidental to
actually enter into the K etc.
3. AIA on the basis that the authority is needed to make the agency
4. NOTE: Check for any express limits on authority (Hely-Hutchinson).
iii. Usual Implied Authority
1. This type of AIA is implied where the act done was one which an agent in
that position would usually have authority to do.
2. For example, a managing director, as opposed to an ordinary director, of
a company, has AIA to do all things that someone holding that position
would usually have authority to do, which includes:
a. Employing people (Hely-Hutchinson)
b. Providing services to the company (Hely-Hutchinson)
c. Guaranteeing loans made to a subsidiary of the company (Hely-
d. Borrowing money (Crabtree-Vickers).
e. Giving securities over company assets (Crabtree-Vickers).
f. Authorising agents to enter into Ks on behalf of that company
g. Indemnifying guarantors (Hely-Hutchinson)
3. NOTE: Even a managing director’s ability to bind the company may be
curtailed by contract, as in Crabtree-Vickers.
4. An ordinary director does not have authority to bind the company, unless
given that ability in contract etc (Northside Developments)
iv. Customary Implied Authority (Custom and Trade Usage)
1. Arises where the act done is in accordance with reasonable business
practice in which the agent is employed (Con-Stan).
2. The custom relied on must be sufficiently notorious, certain and
3. NOTE: The rules of market may be expressly incorporated into the K
made by an agent of a 3 party.
v. Course of Past Dealings
1. Arises where the principal has allowed a course of dealings to consistently
arise over a period of time (Hely-Hutchinson).
2. If a board of directors allow a person to enter into Ks of a particular type
on behalf of the company over a period of time, without explicit approval
nor sanction, then the court may find that the person had AIA to enter into
such Ks in the future (Hely-Hutchinson).
3. Points from Hely-Hutchinson:
a. Two contracts are enough to show a course of dealings
b. AIA is not automatically implied by nature of office of chairman (per
Page 2 of 12 Nick Dowse Agency
Denning LJ @ 584)
c. If board acquiesced conduct of agent, will be easier to show AIA
(per Pearson @ 592)
d. If don’t go to board for authority, or go for subsequent approval,
more inclined to show AIA (per Pearson @ 592).
e. If Ks are large and hazardous, doesn’t necessarily mean they are
outside scope of AIA (per Pearson @ 592).
4. State what the agent has done in the past, and how the board reacted
5. NOTE: same set of facts can give rise to an AIA on basis of past dealings
and ostensible authority – point this out.
c. Ostensible Authority (OA)
i. Even if there is no actual authority, the agent may be deemed to be acting under
OA (Freeman & Lockyer).
ii. Its basis is rooted in estoppel (Northside Developments).
1. Thus, it has the usual 3 elements of an estoppel: representation of
authority, reliance and detriment.
iii. Did the 3 party receive a representation that the agent acts for the principal?
1. A representation can be made by words or conduct, and the
representation must be to the effect that the agent acts for the principal.
2. A representation can be made by words or conduct, for example:
a. By the principal appointing the agent to a particular position within
the company, or entrusting them with some special responsibility;
b. A course of dealing between the 3 party and the principal through
the agent; or
i. Note overlap here with AIA (above).
c. The principal standing by mute whilst someone deals with a 3 rd
party apparently on behalf of the principal.
3. Common representations include:
a. Featuring name and title of agent in public view, may mean
principal is estopped from denying agent’s ostensible authority
(Tooth v Laws).
b. Allowing someone who is not a managing director to act as such =
an implied representation that the managing director has authority
to bind the company within the usual ambit of authority of a
managing director (Freeman & Lockyer).
c. Indeed, appointing someone to a particular position of importance
(ie MD) = an implied representation to 3 parties that the person
would have all the power to do the things a person in that position
would ordinarily be able to do (Robinson v Tyson).
d. Permitting business cards, letterheads etc of the business to be
used = may amount to an implied representation (Derham)
e. Entrusting means of completing contracts on principal’s behalf (ie
by giving official stamp etc) = representation by principal (BNP
i. Including giving the agent a signed document etc, arming
them with the indicia of authority (Essington Investments)
ii. Giving blank order form = no representation (Crabtree-
4. The representation must generally come from the principal itself, or from
someone actually authorised by the principal (BNP Paribas)
a. It is not enough for the representation to come from the agent
alone, without more, as there is no recognised doctrine of a self-
Page 3 of 12 Nick Dowse Agency
authorising agent (First Energy).
b. However, the conduct of the agent is not entirely irrelevant, though
it is important that the source of the representation is the principal
i. Must be able to trace it all back to something the principal
has done, or failed to do (ie how it has failed to protect itself,
or how it has allowed its corporate structure to present to
ii. What the agent says may constitute a warranty of authority,
but that avails against the agent only (Crabtree-Vickers).
c. Where an agent holds themselves out as having authority, the
representation by the principal may be:
i. The principal’s failure to interfere when it should have (Hely-
ii. The principal’s failure to take proper safeguards against
representations of authority by agents (BNP Paribas;
Flexirent Capital). Factors:
1. Placing agent in position which equipped them to deal
with the third party (BNP @ ); and
2. Form and content of documents themselves (BNP @
3. Stamp of the principal to give impression of
authenticity of document on which it appears (BNP @
4. Organisational structure of company (ie where agent
is the one who deals with and communicates
between the parties), who signs the document (here,
the agent), and lack of internal checks or
qualifications of capacity when doing transaction
(BNP @ ).
d. Where the principal is a company, the representation must be
made by some person who has: (Crabtree-Vickers)
i. AEA or AIA from the company to make the representation;
ii. AEA or AIA to do the act concerned, or AEA or AIA to
manage the business generally, or in the subject matter of
e. This means that a person with only OA cannot confer OA on
another (Crabtree-Vickers) NOTE
i. Must come from actual authority
5. A representation can be made directly to the 3 party, or to the public at
large, provided it can be inferred to have reached the 3 partyd
(Inrdrnational Paper Co v Spicer).
iv. Did the 3 party rely on such a representation?
1. There must be a causal connection between the representation to the 3 rd
party and the dealing between the 3 party and agent.
2. The 3 party cannot hold the principal liable where the 3 party was
unaware of the rep, did not believe it, or where the 3 party knew, or had
the power to know, the truth (Hely-Hutchinson).
a. If the 3 party is put on notice, will be difficult to show reliance.
3. Where the 3 party knows there is a limitation of the authority of the
agent, it is almost impossible to show reliance (Russo-Chinese).
a. NOTE: recent authority to suggest a more liberal approach
Page 4 of 12 Nick Dowse Agency
i. State: It is necessary to assess the whole of the principal’s
conduct in the particular circumstances
ii. In particular circumstances, a holding-out may exist which it
would be inequitable to allow the principal to resile from that
representation, notwithstanding a known limitation on the
rd agent’s authority (per Whelan J @ [203(f)]), .
v. Lastly, did the 3 party alter its position because of that reliance (detriment)?
1. Usually easily made out
2. Entry into the contract in question would be enough to satisfy this element
vi. Effect of Finding of Ostensible Authority
1. If find agent has OA, must first check that what the agent actually did
would come within the representation (Nowrani v Brown).
a. Don’t just assume that everything will.
b. Example: if representation that a person is a commercial manager,
have to consider how far that gets you. May still mean acts are
outside the scope.
2. If the agent had OA and acrdd within scope, then the K will be effective to
bind the principal and 3 party.
3. The principal can sue the agent for breach of duty, in particular, the failure
of the agent to follow instructions (see agent’s duties below).
7. Can the principal ratify the agent’s acts?
a. Ratification retrospectively grants authority to an agent where the agent, at the time of
the act, had no authority (Keighley Maxsted).
i. Where an act is done purportedly in the name or on behalf of another (the
principal) by a person who has no authority to do that act (the agent), the
principal may, by ratifying the act, make it as valid and effectual, subject to
certain provisos, as if it had originally been done with its authority (Firth v
b. Firstly, the agent must expressly purport to act for the principal (Keighley Maxsted)
i. i.e. needs to sign expressly on behalf of someone else – “Nick Dowse on behalf
of QUT” as opposed to just “Nick Dowse” or “Nick Dowse, agent”
ii. Will be satisfied if the principal was disclosed, identifiable or was given a
reasonable description (Watson v Davies).
1. A reasonable description is a reasonable designation of the person
intended to be bound by the K (Keighley), known or ascertainable at the
time of the K (Lyell v Kennedy).
iii. If the agent signs only using their name, they can be sued personally on the K,
whether the principal is named in the K or is known to the King party or not
(Cooper v Fisken).
iv. If the agent signs their name, and appends the word “agent”, this is a conclusive
assertion of agency, and a conclusive rejection of the responsibility of the agent
as a principal (Universal Steam)
1. Once the 3 party knows the agent is not the principal, the agent is not
personally liable (Marsh & McLennan v Stanyers).
v. Go to notes on “undisclosed principal” (below) if necessary…
c. Secondly, the principal must ratify the agent’s acts either expressly or impliedly
i. This is a question of fact (Borg).
ii. Ratification can be implied where the conduct of the principal shows he has
adopted or recognises the contract, or where the principal stays mute or
acquiesces the conduct (Cox).
1. But there must be no other explanation for the principal’s act (Foreman).
d. Thirdly, the principal must have authority/capacity to ratify
i. A principal may ratify through an agent, and the agent need only have authority
Page 5 of 12 Nick Dowse Agency
to ratify (doesn’t need to have authority necessary to perform actual act itself)
ii. The principal must be competent to be the principal when the transaction
occurred, and at the time of ratification, that is, they must have had contractual
capacity at the time of the K (Trident).
iii. If it is a company, s 183(1) allows a corporation that was not in existence at the
time of the K to later ratify it (Corporations Act s 183(1))
e. Fourthly, the principal must have full knowledge of the relevant circumstances (Taylor)
i. A principal can only ratify if they are aware of all material facts at the time of
ratification, or displayed an intention to ratify no matter what the circumstances
were (Taylor v Smith)
1. NOTE: will be displaced if the principal was shown to have adopted the
agent’s acts, whatever they were (Bayley v Fitzmaurice)
ii. For example, if doesn’t know about a secret bribe/commission, might not be able
to ratify (Howard Smith v Varawa).
f. Lastly, the principal must ratify within a reasonable time
i. Ratification must occur within a reasonable time of the otherwise unauthorised
act (Asylums Board).
1. But if the principal does not know of it at the time, then time starts to run
from when they do become aware of it (Belford Insurance)
ii. No rigid rule as to what is reasonable (Frigmobile)
iii. Question of fact (Celthene)
g. Factors Affecting Effectiveness of Ratification
i. Notice of ratification is not necessary to effect ratification (McLaughlin)
1. Silence or acquiescence can amount to ratification (Cox v Isles)
ii. Where offer withdrawn before ratification
1. A pure application of the doctrine of ratification would render any
purported revocation by the promisee ineffectual, because ratification
takes effect from the time of the unauthorised acceptance by the agent
(Bolton v Lamert).
2. However, this can produce inequitable results and has been criticised by
the HCA in Davison v Vickery’s
a. Ratification should not operate where it would destroy the rights
that have accrued to a 3 party, between the purported withdrawal rd
and the later ratification, or where identifiable hardship to the 3
party would occur (per Isaacs J).
3. Thus, there is authority to say that a revocation of offer by the 3 party will