Hawksford v Hawksford

(2005) 191 FLR 173; [2005] NSWSC 463

Supreme Court of NSW

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Interrogate

Catchwords

1. Practice and Procedure
2. › Parties
3. › Striking out a party
4. › Challenge to retainer of solicitor purporting to act for defendant
5. › Whether solicitor validly retained
6. › Whether actual authority or ostensible authority of person purporting to retain solicitor is relevant
1. Evidence
2. › Burden of proof
3. › Lack of authority of solicitor to act for party in proceedings
4. › Where facts particularly within knowledge of one party
5. › Distinction between legal onus and evidential burden
1. Principal and Agent
2. › Authority of agent
3. › Implied actual authority of managing director
4. › Whether managing director has implied actual authority to instruct solicitors in litigation concerning internal corporate deadlock
1. Corporations
2. › Management and administration
3. › Implied actual authority of managing director
4. › Whether managing director has implied actual authority to act for company in litigation concerning deadlocked internal organs
5. › Procedures through which corporation might become represented in litigation
6. › Corporations Act 2001 (Cth), ss 236, 237, 232, 233

Quick Take

When challenging a solicitor's retainer in litigation, the onus of proving lack of retainer falls on the challenger, but an evidential burden shifts to the other side where relevant facts are peculiarly within their knowledge. A managing director lacks implied actual authority to instruct solicitors in litigation concerning the company's internal administration or governance deadlock; the proper mechanism is an application under ss 236-237 of the Corporations Act 2001 (Cth). The doctrine of agency of necessity has no application to deadlocked corporations.