CONTRACTS — Incorporation of terms in contract partly oral and partly in writing — where dispute as to the terms of conversation part of surrounding circumstances — approach to assessment of the reliability of evidence given by witnesses
PRINCIPAL AND AGENT — actual authority — whether Plaintiffs’ architect had express or implied actual authority to receive information concerning goods
PRINCIPAL AND AGENT — apparent or ostensible authority — whether architect held out as having authority to receive information concerning goods — whether principal imputed with knowledge of advice conveyed to architect
CONSUMER LAW — misleading or deceptive conduct — non-disclosure — conduct by silence or omission — whether reasonable expectation of disclosure — where information disclosed to architect — no reasonable expectation of disclosure to Second Plaintiff — conduct did not have tendency to lead into error
Quick Take
1Where a contract is partly oral and partly in writing, information conveyed to a party's architect acting within the scope of actual or ostensible authority to receive communications from a supplier is attributable to the principal, even where the principal had expressed a preference to be personally informed — the principal's request did not constitute a clear revocation or limitation of the agent's authority to receive such information.
2In a silence-based misleading or deceptive conduct claim under ACL s 18, there is no reasonable expectation that a supplier must convey information directly to the principal decision-maker where the information has been disclosed to the principal's project representative who was the supplier's primary contact throughout the dealings and who had ostensible authority to receive such disclosures.
3A party who pleads that its agent participated in conversations forming part of a contract, and whose counterparty admits that agency, cannot in closing submissions seek to limit the scope of that admitted agency to exclude the agent's receipt of information directly relevant to the contract's formation, absent any pleaded qualification or reply.
