Cousens v Grayridge Pty Ltd; Hillside Way Pty Ltd v Grayridge Pty Ltd

[2000] VSCA 96

Victorian Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Principal and Agent
2. › Authority of agent
3. › Actual authority
4. › Implied authority
5. › Mortgage broker
6. › Whether implied authority to receive mortgage advance on behalf of borrower
7. › Authority inferred from conduct of parties and circumstances of case
1. Principal and Agent
2. › Authority of agent
3. › Ostensible authority
4. › Representation by putative agent
5. › Whether representation must come from principal not agent
6. › Whether reliance on forged document sufficient
1. Principal and Agent
2. › Authority of agent
3. › Actual authority
4. › Express authority
5. › Similar fact evidence
6. › Whether evidence of prior transactions admissible to prove authority in subsequent transaction
1. Estoppel
2. › Estoppel by deed
3. › Acknowledgment of receipt of consideration
4. › Receipt clause in deed where money not in fact paid
5. › Equitable rule prevailing over common law estoppel
6. › Whether rectification available

Quick Take

A mortgage broker's implied actual authority to receive loan proceeds on behalf of a borrower may be inferred from the course of dealing between the parties across related transactions, including the broker's attendance at prior settlements and receipt of funds with the principal's knowledge and acquiescence. However, ostensible authority cannot be established where the representation of authority comes only from the putative agent (including through a forged document) and not from the principal. A receipt clause in a deed acknowledging payment of a principal sum does not create an estoppel where the money was not in fact paid, as the equitable rule prevails over the common law rule of estoppel by deed.