BREMNER v SINCLAIR [1998] NSWCA 276

BREMNER v SINCLAIR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, MEAGHER and POWELL JJA

28 November 1997, 3 November 1998

Principal and agent — agent authorised to bid on behalf of principal at auction — whether authorised to delegate making of individual bids — whether authorised to delegate bidding up to a certain value — whether final bid subsequently ratified by principals

Mason P Mr and Mrs Sinclair ("the vendors") between them owned "Glenburnie" near Uralla. They instructed Elders Real Estate at Armidale to submit it to auction on 20 March 1991. Mr Bremner was employed by Elders as an auctioneer.

On 20 March 1991 Mr Bremner knocked down the property to Mr and Mrs Hudson for $960,000. In fact, the bid at the auction was made by Mrs Murphy who was the secretary of Mr McAllister of the Public Trust Office who represented the Hudsons. Mr Bremner signed the Contract for Sale on behalf of Mr and Mrs Hudson as purchasers, in reliance upon a written authority received from the Hudsons.

The contract provided for the conventional 10% deposit. But it was not paid at the auction nor afterwards, despite promises to do so emanating from Mr and Mrs Hudson. It remained unpaid on 5 April 1991 when the vendors terminated the contract. The vendors commenced proceedings in the Equity Division. In the final form of their pleadings, they sued Mr and Mrs Hudson (as first defendants), Mr Bremner (as second defendant) and the selling agent (as third defendant). When the proceedings commenced in 1991 the selling agent was called Elders IXL Ltd. By trial its name had changed to Fosters' Brewing Group Ltd. The vendors sued the first defendants under the contract for the unpaid deposit. Alternatively, they sued the auctioneer and selling agent for breach of warranty of authority and (as to the selling agent) in negligence.