swarb.co.uk - law index
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Agency - From: 1980 To: 1984
This page lists 6 cases, and was prepared on 02 April 2018.
ÂStanley Yeung Kai Yung and another v Hong Kong and Shanghai Banking Corporation [1981] AC 787; [1980] 2 All ER 599
1980
PC
Lord Scarman
Torts - Other, Commonwealth, Agency
The shareholder had had his share certificates stolen. The thief lodged forged transfers with stockbrokers, who in good faith sent the share certificates and transfer deeds to the bank for registration and transfer, which was done. The transferee thus came to be registered and he then sold the shares. The innocent shareholder asked for his name to be restored to the register and for related relief. The bank brought third party proceedings against the stockbrokers. The original shareholder succeeded against the bank. As between the bank and the stockbrokers, at first instance and in the Hong Kong Court of Appeal the Judges relied on the Barclay implied indemnity and found the stockbrokers liable to indemnify the bank. The stockbrokers appealed to the Privy Council. Held: The decision in Barclay was upheld.
Lord Scarman dealt with an argument advanced by the stockbrokers that it was truly the transferee rather than the stockbrokers who had requested the bank to act upon the transfer deeds and to issue new certificates and hence, as it was sought to argue, that, rather than the stockbrokers, it was only the transferee who was responsible for indemnifying the bank. As to that argument he said: "It is not the case that, if a principal is liable, his agent cannot be. The true principle of the law is that a person is liable for his engagements (as for his torts) even though he is acting for another, unless he can show that by the law of agency he is to be held to have expressly or impliedly negatived his personal liability. But, upon the view of the letters, which the Courts below accepted and this Board believes to be correct, the brokers cannot avoid personal responsibility for whatever consequences the law attaches to the making of the request and the bank's compliance with it. It was their request – even though made on Mr Wong's [the transferee's] behalf."
As to an indemnity, after quoting Dugdale v Lovering: "This "broad principle", as Lord Davey called it, has been consistently followed, and Mr Leggatt for the brokers disclaimed any intention to invite their Lordships' Board to review it. Their Lordships are satisfied that it is now firmly embedded in the law: see Bank of England –v- Cutler [1908] 2 KB 208; Secretary of State for India –v- Bank of India Ltd [1938] 65 Ind. App. 286 and Welch –v- Bank of England [1955] Ch 508 (per Harman J at pp. 548-549). " and "For these reasons their Lordships find themselves in agreement with the Court of Appeal in holding that there was in the circumstances of this request a promise by the stockbroker to indemnify the bank if, by acting on the request, it caused actionable injury or damage to a third party. The promise was accepted by the bank acting on the request and became a contractual indemnity."
1 Cites
1 Citers
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Great Atlantic Insurance Co v Home Insurance Co [1981] 2 Ll R 219
1981
Lloyd J
Agency
Lloyd J said: "if the principal has held out his agent as having a certain authority, it hardly lies in his mouth to blame the agent for acting in breach of a secret limitation placed on that authority".
1 Citers
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 China Pacific SA v Food Corpn of India (The Winson); HL 1982 - [1982] AC 939
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Neste Oy v Lloyd's Bank Plc [1983] 2 Lloyds Rep 658
1983
ChD
Bingham J
Insolvency, Agency, Banking
A shipping agent (PSL), a client of the defendant, had become insolvent. The defendant sought to combine the accounts. PSL settled on behalf of their shipowner clients bills payable to harbour authorities, pilots, fuel merchants, and other providers of goods and services. The shipowners sometimes put them in funds in advance and sometimes reimbursed them in arrears. The plaintiff shipowners claimed that the unspent balance of six payments made by them to a general account of PSL were held for them in trust. Their primary case was that the payments were subject to an implied trust to pay the money to the suppliers. This arose either by virtue of the agency relationship or as a special purpose (or Quistclose) trust. Held: The argument was rejected. However, there was a constructive trust of the sixth payment, which had been received after the directors of PSL had concluded that their company was insolvent.
Bingham J approved as "in accord with the general principles of equity as applied in England": "the receiving of money which consistently with conscience cannot be retained is, in equity, sufficient to raise a trust in favour of the party for whom or on whose account it was received. This is the governing principle in all such cases. And therefore, whenever any controversy arises, the true question is, not whether money has been received by a party of which he could not have compelled the payment, but whether he can now, with a safe conscience, ex aequo et bono, retain it." from Story's Commentaries on Equity Jurisprudence, 2nd ed.
He applied this to the facts of the case saying: "Given the situation of PSL when the last payment was received, any reasonable and honest directors of that company (or the actual directors had they known of it) would, I feel sure, have arranged for the repayment of that sum to the plaintiff's without hesitation or delay. It would have seemed little short of sharp practice for PSL to take any benefit from the payment, and it would have seemed contrary to any ordinary notion of fairness that the general body of creditors should profit from the accident of a payment made at a time when there was bound to be a total failure of consideration. Of course it is true that insolvency always causes loss and perfect fairness is unattainable. The bank, and other creditors, have their legitimate claims. It nonetheless seems to me that at the time of its receipt PSL could not in good conscience retain this payment and that accordingly a constructive trust is to be inferred."
1 Cites
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Resolute Maritime Inc v Nippon Kaiji Kyokai [1983] 1 WLR 857
1983
Contract, Agency, Torts - Other
On its proper construction the section is concerned only with the liability of that other party to the contract and not with the liability of an agent.
Misrepresentation Act 1967 2(1)
1 Citers
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Doyle v Mount Kidston Mining and Exploration Property Ltd [1984] 2 Qd R 386
1984
McPherson J
Agency, Commonwealth
(Queensland) McPherson J considered an estate agent's contract: "it would have been quite artificial to suppose that the parties intended that the agent should earn his commission simply by finding an individual who, independently of any further action by the agent, later agreed to buy the subject property."
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