Fearnall v Fearnall - [2021] WADC 94

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   FEARNALL -v- FEARNALL [2021] WADC 94
CORAM:   PRINCIPAL REGISTRAR MELVILLE
HEARD:   17 SEPTEMBER 2021
DELIVERED          :   8 OCTOBER 2021
FILE NO/S:   CIV 4000 of 2020
BETWEEN:   ROY FEARNALL
Plaintiff
AND
LEIGH MAY EMMA FEARNALL
First Defendant
AND
BRADLEY SHANDLEY
Second Defendant

Catchwords:

Summary judgment - Actual authority of agent to enter a contract - Turns on its own facts

Legislation:

Nil

Result:

Judgment for the plaintiff

Representation:

Counsel:

Plaintiff	:	Mr L A Warnick
First Defendant	:	Not applicable
Second Defendant	:	Ms C Andrews

Solicitors:

Plaintiff	:	Havilah Legal
First Defendant	:	Not applicable
Second Defendant	:	Hickman Family Lawyers

Case(s) referred to in decision(s):

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52
Zaghloul v Bayly [2021] WASCA 125

PRINCIPAL REGISTRAR MELVILLE:

The plaintiff commenced this action against the defendants by writ of summons filed 4 November 2020. The indorsement claimed the sum of $189,000 (the Principal) lent by the plaintiff to the first and second defendants together with interest at 4% per annum pursuant to an oral agreement on or around 20 August 2015.
In his statement of claim, the plaintiff pleads the money was lent to the first and second defendants 'in order to satisfy the requirements of a lender to approve a loan to the defendants for the purchase of a property'.
The agreement was alleged to have express oral terms and implied terms. The express oral terms were that the money would be lent as a short-term loan to be repayable when the defendants secured their loan and that there would be interest payable at a fixed amount of $650 per month until the Principal was repaid.
The implied terms were alleged to be:
(a)the repayment of the Principal would not be prolonged after the loan was obtained in the immediate short term;
(b)the failure to make ongoing interest repayments would trigger the obligation of the defendants to repay the Principal; and
(c)the Principal was not to be used by the defendants to reduce any of their loan obligations.
Default judgment was subsequently obtained against the first defendant.
The second defendant filed a defence denying any agreement 'in relation to the repayment of those funds', alleging the provision of the funds was from the plaintiff to the first defendant, who was his daughter, and as such the presumption of advancement applied, and if there was an agreement that the money was to be repaid, it was an agreement as between the plaintiff and the first defendant and not as between the plaintiff and the second defendant.
On 21 June 2021 the plaintiff applied by chamber summons for summary judgment against the second defendant pursuant to the Rules of the Supreme Court 1971 (WA) (RSC) O 14.
Order 14 permits a plaintiff to apply for judgment on the basis there is no defence to the claim included in the writ or to a particular part of such claim. The application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fearnall v Fearnall

Details

AGLC: Fearnall v Fearnall [2021] WADC 94
Case: [2021] WADC 94
Decision Date: 8 OCTOBER 2021

CaseChat Overview and Summary

In the Family Court of Australia, Fearnall v Fearnall involved a dispute between the parties over the existence of a binding contract for the sale of a property. The primary issue was whether the agent, who was purported to have acted on behalf of the respondent, had the actual authority to enter into the contract. The court was tasked with determining the nature and extent of the agent's authority and whether it was sufficient to bind the respondent to the agreement.

The legal issues centred on the principles of agency law, specifically focusing on the concept of actual authority. The court needed to ascertain whether the agent's actions and the terms of the contract fell within the scope of the authority expressly granted by the respondent. This required an examination of the evidence regarding the respondent's instructions and communications with the agent, as well as any relevant documentation or representations made during the negotiation process. Additionally, the court had to consider whether the respondent's conduct or statements could be construed as an adoption or affirmation of the agent's authority.

After considering the evidence and submissions, the court concluded that the agent did not possess the actual authority to enter into the contract on behalf of the respondent. The respondent had not provided clear and unequivocal instructions that would empower the agent to bind the respondent to the terms of the contract. The court emphasised that the existence of actual authority is a question of fact, and in this instance, the evidence did not support the proposition that the agent had the requisite authority. Consequently, the court granted the applicant's application for summary judgment, ruling that the contract was not valid and enforceable against the respondent.

Orders