Pembroke Antiques Pty Ltd & Ors v S.p.A. Property and Investment Company Pty Ltd

This matter comes before the High Court of Australia on an application for special leave to appeal from a decision of the Court of Appeal of Queensland. The applicants, Pembroke Antiques Pty Ltd and others, seek leave to appeal against a judgment where the two sitting judges of the Court of Appeal, Fitzgerald P and Pincus J, reached the same conclusions but differed critically on their findings of fact regarding the appointment of an agent.

The central legal issue before the High Court is whether the Court of Appeal erred in its determination of the factual circumstances surrounding the appointment of an agent. Specifically, the dispute concerns whether the respondent lessor accepted the agent as its agent on 26 July 1989, whether the lessor held out the agent as its ostensible agent at a meeting of the parties, and whether this agency was subsequently confirmed in writing. The differing findings of fact by the two judges of the Court of Appeal on these points form the basis of the application for special leave.

The Court of Appeal's decision was complicated by the fact that only two judges sat. Fitzgerald P found that the agent was accepted on 26 July 1989, was held out as the lessor's ostensible agent, and that this agency was confirmed in writing on 27 July 1989. In contrast, Pincus J rejected the contention that the agent was appointed at a meeting on 26 July 1989, finding that Exhibit 6, the agreement to lease, merely implied an earlier appointment rather than confirming it. His Honour also considered whether there was a period after the appointment of the agent during which it had authority to make representations to induce a contract, a point on which his Honour's reasoning differed from that of Fitzgerald P. The application for special leave to appeal highlights these divergent factual findings as a critical issue.