Auckland v Khan & Anor

Agency need not be pleaded in express terms where the pleaded facts establish the alleged contract. If the defendant relies on the agent’s lack of authority, that issue should be raised in the Defence when the relevant case is apparent.

The failure to put a particular point directly to a witness is not automatically fatal. The court must assess whether the point was fairly raised in substance, whether the witness had a proper opportunity to address it, and whether fairness requires rejection of the case. An unchallenged trial finding based on credibility and the evidence as a whole may independently establish actual authority.

The appellant challenged a finding by Mr Recorder Klein in the Wakefield County Court that his father, Mr Jumma, had authority to commit him to a loan contract with the respondents. The appellant argued that the respondents had not pleaded the agency expressly, that there was no evidence capable of supporting the finding, and that the issue of authority had not been put directly to him in cross-examination.

The appeal therefore concerned the pleading and evidential requirements for establishing an agent’s authority, and the consequences of failing to put a central feature of a case to a witness.

1. Appeal dismissed. The Particulars of Claim pleaded the facts necessary to establish the cause of action, namely that there was a loan contract between the appellant and the respondent. An express allegation that Mr Jumma acted as the appellant’s agent was unnecessary. If the appellant disputed his father’s authority, that issue should have been raised in the Defence once the respondent’s case was apparent (paras 6–8).
2. The family arrangements described in the pleadings and evidence showed that Mr Jumma exercised general control over family resources and arranged property purchases. The appellant’s own evidence stated that his father handled the money aspects of the purchase and would make the necessary finance arrangements. That evidence was capable of supporting the finding of authority (paras 9–12).
3. The relevant issue had, in substance, been put in cross-examination. The first defendant was questioned about Mr Jumma’s authority to arrange borrowing for property purchases. The appellant himself addressed the loan arrangement and gave evidence that his father would not borrow. It was unrealistic to require the precise conditional question suggested on appeal to be repeated after the evidence had been given and disbelieved. The failure to put a central feature of a case can in an appropriate case require its rejection, but fairness did not require that result here (paras 13–16).
4. The Recorder found it inherently probable that Mr Jumma had discussed the proposed loan with the appellant and had thereby obtained agreement that the appellant would ultimately repay it. The appellant’s denial of that discussion was rejected. That credibility-based finding, which was not challenged on appeal, amounted to a finding of actual authority and was fatal to the appeal (para 17).
5. For those reasons, the court dismissed the appeal (para 18).

• Court of Appeal (Civil Division): The appeal from the Wakefield County Court was dismissed. The court upheld the Recorder’s finding that Mr Jumma had authority to commit the appellant to the loan contract (paras 3, 17–18).