Lundie & Anor v Rowena Nominees Pty Ltd (Receiver & Manager Appointed) (In Liq)

[2006] WASCA 106

Western Australia Court of Appeal

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Catchwords

1. Practice and Procedure
2. › Summary judgment
3. › Interlocutory appeal
4. › Whether Master erred in not awarding summary judgment
5. › Whether statement of claim discloses triable issue
6. › Leave to appeal refused
7. › Rules of the Supreme Court 1971 (WA), O 16
1. Agency
2. › Agent contracting for non-existent or unidentified principal
3. › Whether agent entitled to sue on contract as principal
4. › Where identity of principal not material to other contracting party
5. › Disclosed but unidentified principal
6. › Fictitious or non-existent principal
1. Contract
2. › Construction and interpretation
3. › Whether party entered loan agreements as principal or agent
4. › Execution of agreement 'as attorney for and on behalf of' unidentified lender
5. › Whether agreement constitutes a deed
1. Contract
2. › Validity
3. › Agreements made pursuant to non-existent power of attorney
4. › Whether absence of power of attorney renders agreement invalid
5. › Property Law Act 1969 (WA), s 84

Quick Take

Where an agent executes a contract (including a deed) in its own name on behalf of an unidentified or non-existent principal, there is an arguable basis for the agent to sue on the contract as principal, particularly where the identity of the principal is immaterial to the other contracting party. The absence of a power of attorney does not of itself render the agreement invalid; the question of validity depends on wider common law principles of agency. Section 84 of the Property Law Act 1969 (WA) has no application where there is no power of attorney at all.