Case: International Harvester Co of Australia Pty Ltd v Carrigan's Hazeldene Pastoral Co [1958] HCA 16 ; (1958) 100 CLR 644
Outcome: considered
Before identifying those factors which have been found to be of varying significance as indicators of, variously, agency or sale, it is appropriate, first, to refer generally to a number of relatively uncontroversial propositions of agency law. In so doing, I repeat for convenience in part what I said in South Sydney District Rugby League Football Club Ltd v News Ltd (2000) 177 ALR 611 at [131] ff. (1) Those definitions of agency that take the principal and agent relationship itself as their particular focus: contrast International Harvester Co of Australia Pty Ltd v Carrigan's Hazeldene Pastoral Co [1958] HCA 16 ; (1958) 100 CLR 644 at 652; emphasise that that relationship "can only be established by the consent of the principal and the agent": Garnac Grain Co Inc v HMF Faure &amp; Fairclough Ltd [1968] AC 1130 at 1137; see, for example, Bowstead &amp; Reynolds at [1-001]; Restatement of Agency, Third , SS1.01; 3 Am Jur 2d, "Agency", SS15. (2) The consents so given need not necessarily be to a relationship that the parties understand, or even accept, to be that of principal and agent: Branwhite v Worcester Works Finance Ltd [1969] 1 AC 552 at 587. It is sufficient if "they have agreed to what amounts in law to such a relationship": Garnac Grain Co Inc at 1137; Nichols v Arthur Murray Inc 56 Cal Rptr 728 (1967) at 730-731; Restatement of Agency, Second, SS1 comment. (3) Though there is no uniformly agreed definition of agency: see the discussion in Fisher, Agency Law at 8-11 (2000); the two whose authoritative character has resulted in their wide citation are those of the Restatement of Agency, Third, SS1.01 and of Bowstead &amp; Reynolds at [1-001] (the latter being based upon the Restatement provision). The Restatement's definition is that: SS1.01 Agency is the fiduciary relationship that arises when one person (a "principal") manifests assent to another person (an "agent") that the agent shall act on the principal's behalf and subject to the principal's control, and the agent manifests assent or otherwise consents so to act. Bowstead &amp; Reynolds' definition is that: [1-001] Agency is the fiduciary relationship which exists between two persons, one of whom expressly or impliedly manifests assent that the other should act on his behalf so as to affect his relations with third parties, and the other of whom similarly manifests assent so to act or so acts pursuant to the manifestation. The necessary consents apart, the required characteristic of the relationship is that one party acts on behalf of, and is authorised to act on behalf of, the other. This "representative" characteristic must be able to be discerned in the factual relation of the parties: Colonial Mutual Life Assurance Society Ltd v The Producers and Citizens Co-operative Assurance Co of Australia Ltd [1931] HCA 53 ; (1931) 46 CLR 41 at 48-50. (4) Though the characteristic of "control" is accentuated in the Restatement's definition: see comment f to SS1.01; its significance is far more muted in Anglo-Australian law: see South Sydney District Rugby League Football Club at [136]. Thus, it is commented in Bowstead &amp; Reynolds (at [1-017]) that: It might seem therefore that control is not a significant feature of the internal relationship, except in so far as the relationship by definition posits a person, the principal, giving authority, and the agent's duty to obey instructions if he wishes to continue as agent. Nevertheless, if the principal gives up all control of his supposed agent the relationship is only doubtfully one of agency. I will return to the significance of the presence or absence of control later in these reasons. 53 (iii) It may be apparent from the circumstances and context of the supplier's and intermediary's dealing, that, on sales to a third party buyer it was reasonably to be expected that the intermediary was to answer to that buyer for the quality of the goods sold: cf International Harvester Co ; Bowstead &amp; Reynolds at [1-032]. 54 (iv) Two duties stemming from a finding of agency are that the agent (a) must keep its principal's property separate from its own; and (b) must keep an accurate account of all transactions entered into on its principal's behalf: see generally Bowstead &amp; Reynolds at [6-088] ff; Dal Pont, Ch 13. It has been suggested on occasion that these consequences may be indicative of an agency (at least if they have been expressly or impliedly agreed by the parties): cf Benjamin's Sale of Goods at [1-049] (7 th ed, 2006). For present purposes I merely note those agency obligations. I will make further reference to them after having outlined how Farmlink actually dealt with TVO in relation to the proceeds of sale received from the Singaporean and Hong Kong buyers and in relation to keeping accounts of the sales made by Farmlink. 179 Under the shadow of the principles to which I earlier referred and of the decisions of International Harvester Co , Ex parte White; In re Neville and Witt in particular, the factual matters upon which TVO relies primarily for this conclusion are: (i) the transaction between TVO and Farmlink was at a firm price; (ii) the documentation all reflected a sale from TVO to Farmlink; (iii) Farmlink set the price for the overseas sale and kept its sale price and margin a secret; (iv) Farmlink engaged all the freight forwarders and paid the freight costs itself; (v) Farmlink never accounted to TVO in a way which showed the total amount received, its margin and amounts paid for freight, etc; (vi) Farmlink issued invoices to its overseas customers; (vii) Farmlink alone knew the identity and location of its overseas customers; (viii) Farmlink identified itself as the shipper on the bills of lading and airway bills; (ix) Farmlink negotiated the changes in price without checking or obtaining instructions from TVO or Mr Hannaford; and (x) significantly in the year that there was insurance, the insured was Farmlink, the consignee's interest was noted, but there was no recording of TVO having any interest in the cherries.