Hays International College Pty Ltd and Joshua Cheng v Quikfund

Judgment 1HIS HONOUR: By Statement of Claim filed in the Local Court on 2 February 2012 Quikfund (Australia) Pty Ltd (hereinafter referred to as "Quikfund") sued Hays International College Pty Ltd (hereinafter referred to as "HIC") for $51,156 being "monies owing pursuant to a rental agreement". In the proceedings Quikfund also sued Joshua Cheng pursuant to a guarantee and indemnity. 2On 14 May 2012 Magistrate Bradd found a verdict for the Plaintiff in the Local Court in the sum of $50,160 plus interest. He ordered "the defendant" to pay the Quikfund's costs. 3By summons filed in this Court on 7 June 2012, HIC and Mr Cheng have appealed. 4The defence raised by HIC and Mr Cheng in the Local Court included that another company, referred to as "Axsiom":- (i) carried on business selling and supplying telecommunications equipment; (ii) promoted a scheme for the provision of telecommunications equipment and services whereby - (a) Axsiom sold telecommunications equipment to Quikfund; (b) Quikfund leased the equipment ot the consumer, and (c) the consumer entered into a contract for the provision of telephone services with Clear Telecoms (Aust) Pty Ltd; (iii) in promoting the above scheme, acted as the agent of Quikfund; (iv) in about July 2009, represented to HIC and Mr Cheng that if HIC took part in the Scheme, the cost to HIC would be no more than the amount it was then paying to Telstra for the provision of telecommunications equipment and services." 5The defence proceeded to allege that in reliance on the representation:- (v) HIC agreed to participate in the scheme; (vi) On 19 August 2009 HIC entered into a rental agreement with Quikfund for the provision of telecommunications equipment for 60 months (such equipment having first been sold to Quikfund by Axsiom); (vii) Mr Cheng signed the rental agreement; and (viii) HIC entered into a contract for the provision of telephone services with Clear Telecoms (Aust) Pty Ltd. 6It was further alleged:- (ix) that the representation was made by One Dennis Rabba, and employee of Axsiom acting within the scope of his employment; (x) that the representation was false and the cost to HIC for the provision of telecommunications equipment and services substantially exceeded the amount HIC was previously paying to Telstra; (xi) In making the representation Quikfund, in trade or commerce, engaged in misleading or deceptive conduct; (xii) Alternatively the representation was a representation with respect to future matters within s 51A of the Trade Practices Act and Quick fund was, by reason of that section, deemed not to have had reasonable grounds for making the representation; and (xiii) Quikfund was a linked credit provider of Axsiom within s 73 of the Trade Practices Act. 7Although clearly those pleadings raised a number of issues, Mr Bradd identified the issue before him as "whether or not Mr Rabba acted as the agent of Quikfund". It was not suggested in this appeal that in that respect his Honour erred. What was challenged was his decision that HIC had not proved that Axsiom was the agent of Quikfund or that Quikfund had permitted Axsiom to hold itself out as such. 8HIC and Mr Cheng contend that in reaching the decision that he did, Magistrate Bradd erred in law or in a mixed matter of law and fact. Quikfund contends that there was no error but if there was, the error was one of fact. It is clear that in the circumstances here, there is no appeal simply on a question of fact - See Local Court Act, s39 and s40. 9In more detail the magistrate's conclusions and reasons were expressed as follows. He referred to two cases relied on by the appellant, Sherberry Pty Ltd v Quikfund (Australia) Pty Ltd [2012] VCAT 1798 and Millennium Support Computer Solutions Pty Ltd v Axsiom Australia Pty Ltd and Quikfund (Australia) Pty Ltd (Magistrates Court of Victoria, 4 August 2010) observing that in the Millennium case the issue of agency was not mentioned and that Sherberry was decided before another case where in his Honour's view the facts were similar, viz Quikfund (Australia) Pty Ltd v Prosperity Group International Pty Ltd (in liq) [2013] FCAFC 5. His Honour continued: 14 The starting point is to determine whether Axsiom is an agent of Quikfund or an introducer of business in accordance with the principles set out in Branwhite where it was decided in relation to a purchase of a motor vehicle through a motor dealer, where the prospective purchaser completes an application for hire purchase in the office of the motor dealer, he forwards it to the finance company for approval, and if approved, the dealer delivers the motor vehicle to the customer. The finance company provides the purchase price to the motor dealer and the customer pays periodic payments to the finance company. The dealer is not acting as an agent of the finance company, merely arranging a finance application to be made by a prospective customer. If the dealer forwarded the finance application to a finance broker, the broker would be acting on behalf of the prospective customer. 15 Branwhite is cited in Prosperity where the analysis of Lindgren J in NMFM Property Pty Ltd v Citibank Ltd (No 10) of the speeches in Branwhite is set out. Lindgren J states that: Lord Upjohn (with whom Lord Guest Agreed) considered that the acts of holding stock of Worcester's formes of hire purchase agreement, filling them in with particulars including Worcester's charges, having a prospective hirer sign the documents, and forwarding the forms to Worcester, showed that Raven was assisting the proposed hirer but did not establish that it had actual or apparent authority from the financier. 16 The fact of Axsiom being in possession of Quikfund documents does not prove agency *. The fact of Mr Rabba completing details on the document and witnessing the signature of Mr Cheng does not prove agency *. The fact of Mr Rabba signing a document on behalf of Clear Telecoms does not prove that Axsiom was an agent of Quikfund *. The delivery by Axsiom of executed documents to Quikfund does not prove that Axsiom was an agent of Quikfund #. The fact of Mr Rabba handing a bundle of documents to Hays rather than the Quikfund document only is not significant. It follows from Branwhite that the possession of documents by Axsiom of other entities is in the business interest of Axsiom. 17 The document "Understanding the Arrangements" is a business document of Axsiom. It state: "The key elements of our arrangements are as follows" - "There is a heading 'Equipment Rental Agreement". The terms are set out, after which, it states: "All equipment and products are rented through Quikfund Australia". Next there is a heading "Telephony Services". The terms are set out, after which it states: "Telephony services will now be delivered and billed monthly by Clear Telecoms". The third heading is "This is the entire Agreement". Underneath are the words: "There are no other expectations of Axsiom Australia. Quikfund Australia or Clear Telecoms". When the words are read in context, it is clear that the document is a business document of Axsiom, which sets out the roles of Quikfund and Clear Telecoms in the arrangement, and provides that the arrangements are the entire agreement. The words "entire agreement" must mean the agreement between Hays and Quikfund to rent the equipment, and the agreement between Hays and Clear Telecoms for telephony services. The words: "There are no other expectations of Axsiom Australia, Quikfund Australia or Clear Telecoms" must be read in relation to the agreements with Hays and Axsiom, Hays and Quikfund and Hays and Clear Telecoms. The acknowledgment as to explaining the key elements of the arrangements is signed by a representative of Axsiom. 18 The document is not evidence that Axsiom was holding out as the agent of Quikfund. Through the document Axsiom represents that there is an arrangement whereby all equipment and products are rented through Quikfund and telephone services are provided by Clear Telecoms, in other words Hays has a rental agreement with Quikfund and telephony services agreement with Clear Telecoms. 19 The onus is on Hays to prove that there was a holding out of Axsiom by Quikfund as its agent. The document of Axsiom, "Understanding the Arrangements" does not prove that Axsiom represented that it acted for Quikfund. The document merely set out the arrangements. 20 ... Axsiom acting on behalf of Quikfund for the release of funds 21 Mr Gallone purported to act for Quikfund in relation to the release of funds to Axsiom. The basis of the conversation was to record evidence from Hays to enable Axsiom to submit a settlement to Quikfund for the release (of) funds by Quikfund to Axsiom. 22 In the conversation Axsiom is holding out as an agent of Quikfund. There is no evidence that Quikfund knew of and acquiesced to Axsiom acting on its behalf as is required to prove apparent agency. The conversation relates to an arrangement between Axsiom and Quikfund for the release of funds. It is not a conversation in relation to the formation of a contract between Hays and Quikfund. The representation implies only that Axsiom had authority to act on behalf of Quikfund to record a conversation with Hays, to facilitate payment by Quikfund to Axsiom. Conclusion 23 As stated in the various cases and texts cited, the representations made or omitted to be made by Quikfund are critical to the proof of agency. The only representations made or permitted to be made by Quikfund go no further than the circumstances set out in Branwhite and Prosperity. 24 The whole of the circumstances of the relationship between Axsiom and Quikfund, and all the facts raised by Hays to prove agency when taken together do no more in relation to the formation of the agreements than show that Axsiom introduced Hays to Quikfund. 25 Hays has not proved on the balance of probabilities that Axsiom was the agent of Quikfund. 10Each asterisk in paragraph 16 indicates a footnote referring to Quikfund (Australia) Pty Ltd v Prosperity Group International Pty Ltd (in liq) [2013] FCAFC 5. Each hash sign indicates a footnote referring to Branwhite v Worcester Finance Ltd. (1969) 1 AC 552. 11Mr Rabba was not called. Surprisingly in light of previous decisions to which I refer below, there seems to have been no attempt to call evidence as to the circumstances in which he or Axsiom came into possession of any Quikfund documents or of conversations with representatives of Quikfund. The evidence that was said to demonstrate that Mr Rabba had actual or ostensible authority from Quikfund fell into 3 parts. There were firstly a number of documents that came into existence as an incident of the transaction into which HIC entered. Many of these have no relevance to Quikfund but to put into context those that arguably do, all should be referred to. 12There were a number of meetings between Mr Rabba and Mr Cheng and/or other representatives of HIC. There is virtually no evidence of what transpired during these meetings other than that during the final meeting Mr Rabba's proposal was accepted and he then produced a number of documents which were signed on behalf of HIC. The documents were: (i) A "Rental Order and Goods Schedule" on the letterhead of Axsiom. (The document contained the words, "I hereby request Axsiom Pty Ltd to supply and/or install the above mentioned equipment unless specified at the agreed Rental and the terms and conditions overleaf which I have read. One of the terms overleaf was "AXSIOM hereby sells to the customer and the customer hereby buys from AXSIOM the Equipment for the Purchase Price". (ii) (vi) A 6 page document entitled "Application for Clear Telecoms Telephone Service. (Part dealt with the transfer of telephone services from Telstra to Clear Telecoms (Australia) Pty Ltd's Network, part with the provision of 2 new numbers, part with a rate plan including a Monthly Plan Fee and Monthly Plan Credits apparently associated with the telephone services to be provided and part was a Direct Debit Request Form in favour of Clear Telecoms (Aust) Pty Ltd.) (iii) Two documents entitled "Clear Telecoms Mobile Rate Card" and "Clear Telecoms Fixed Line Rate Card". (Above the name Axsiom at the foot of the documents, Mr Rabba signed as "Sales Consultant"" (iv) A document entitled "Mobile and Finance Payouts" and a description of the Payout process. The document is signed by Mr Rabba as "Sales Representative" (The documents appears to deal with a payout due to Telstra in connection with some landline.) (v) A document on the letterhead of Quikfund entitled "Delivery Acknowledgement", signed apparently on 2 September 2009. (The document records that it is from HIC to Quikfund, is entitled Rental Agreement dated19/08/2009, contains an acknowledgement of the installation of the items listed in a Rental Agreement and authorises Quikfund to commence the Rental Agreement and release funds to the supplier(s).) (vi) Another document on the letterhead of Quikfund entitled "Tax Invoice and Rental Schedule" (vii) The document entitled "Understanding the Arrangements" 13The document referred to in (vi) above records that HIC agrees to rent from Quikfund the equipment, being a telephone system and mobile described in a schedule. The documents included also a declaration that the credit to be provided was to be applied wholly or predominantly for business or investment purposes, a request for a direct debit from a bank account, a declaration that the credit being provided is for business or investment purposes and contains two closely typed pages of rental terms. One of those terms records that the customer may offer to rent the goods by completing, signing and giving Quikfund a rental schedule and that Quikfund might accept the offer by signing the rental schedule or paying the supplier for the goods. The document also contained a number of provisions purporting to be a guarantee and in that connection was signed by Mr Cheng. 14The "Understanding the Arrangements" document is, up to the words, "There are no other expectations of Axsiom Australia, Quikfund Australia or Clear Telecoms", described in paragraph 17 of Magistrate Bradd's reasons quoted above. The document then contains acknowledgments by HIC, and by Mr Rabba under the name Axsiom, that the key elements of the arrangements had been explained. It may be noted that the statement "All equipment and products are rented through Quikfund Australia" forms part of the printed form of the document. 15With the exception of the Delivery Acknowledgment all of the above documents are or appear - not all are clear - to be dated 19/8/09. 16According to Mr Cheng, copies of the documents referred to in sub-paragraphs (i) and (ii) were left with him on the date they were signed. A few days later Mr Rabba brought a folder containing executed copies of all of the documents. 17The second part of the evidence relied on by HIC was a communication from a Mr Sandy Gallone from Axsiom. On 5 May 2010 Mr Gallone sent an email to HIC setting out the term of a recorded conversation he desired to have with Mr Cheng in which the latter would "authorise Quikfund to commence the Rental Plan and release the funds to the supplier". 18The third part of the evidence that bears on the issue of actual or ostensible authority consisted of oral evidence by a Ms Semaan who was the accounts receivable manager of Quikfund. Ms Semaan said that she had worked at Quikfund since 2008. She was familiar with Quikfund purchasing goods from Axsiom as a supplier 19Ms Semann said that in the course of her employment she had seen more than 10 times, and was familiar with, "Understanding the Arrangements" forms although she did not know if what she had seen was an exact copy of the one in this case. She also said that prior to giving evidence she had not read the line that said, "no other expectations of Axiom Australia, Quikfund Australia or Clear Telecoms". She could not remember seeing in the forms she had seen "reference to all equipment and products arranged through Quikfund (Australia)". In response to a question suggesting that Quikfund relied on the "Understanding the agreement arrangements document" (sic), Ms Semaan replied, "I don't think we rely on it but we like to see it's been executed". 20Ms Semaan's evidence also included the following:- Q. Can I ask you this though, is the position of Quikfund that it arranges for, in this case Axiom, to confirm that details of what is being delivered to the customer? Is it the process of Quikfund they organise on this occasion Axiom to confirm that the customer has received the goods? A. Yes. On this occasion, yes. Q. On this occasion? A. Yes Q. And that would be standard practice wouldn't it? A. Probably 70% of the time. 21Given the limitation as to the appeals that can be brought, a first question is whether the suggested errors in Magistrate Bradd's decision are errors of law or of mixed law and fact. 22Looking at only the ultimate decision set out in paragraph 25 quoted in [9] above, any error is not one of law or mixed law and fact. As authorities referred to below make clear, questions of agency are questions of fact and mere error in a conclusion as to the existence of agency is therefore not appealable. 23However the matter is not so clear when attention is directed as to how the decisions were arrived at. Error in understanding or applying the relevant legal principles in the course of consideration of whether agency exists would be an error of law. 24The first source of difficulty lies in the opening sentence of the quoted paragraph 14 "The starting point is to determine whether Axsiom is an agent of Quikfund or an introducer of business in accordance with the principles set out in Branwhite ...". It is not clear what those principles are. Certainly a majority of the House of Lords held that on the facts of that case agency, of the nature referred to, was not established. However, it is clear law that, "There is no question of precedent in relation to findings of fact, and to approach the matter in that way runs the serious risk of entrenching factual conclusions based on evidence before an earlier court as having some binding quality on a later court having different evidence at a different time." - North Australian Cement Limited v FC of T (1989) 89 ATC 4,765 at 4,768. 25Reference may also usefully be made to a passage from the judgment of Lord Haldane LC in Kreglinger v New Patagonia Meat and Cold Storage Company Limited (1914) AC 25 at 40 quoted in that case: To follow previous authorities, so far as they lay down principle, is essential if that law is to preserved from becoming unsettled and vague ... But when a previous case has not laid down any new principles but has merely decided that a particular set of facts illustrates an existing rule, there are few more fertile sources of fallacy than to search in it for what is simply resemblance in circumstances, and to erect a previous decision into a governing precedent merely on that account. To look for anything except the principle established or recognized by previous decisions is really to weaken and not to strengthen the importance of precedent. The consideration of cases which turn on particular facts may often be useful for edification, but it can rarely yield authoritative guidance. 26The relevant part of the judgment of Lord Upjohn, with whom Lord Guest agreed, is at (1969) 1 AC 577-9 but as I read those pages his Lordship is doing nothing more than saying that on the facts before him or which he hypothesised, agency was not established. Lord Morris of Borth-y-gest, who was the remaining member of the majority also dealt with the matter as one of fact, observing in the course of his discussion of the issue at 573:- Issues as to agency are mainly to be determined as questions of fact. Furthermore, they often need to be determined by reference to some particular moment of time or by reference to different moments of time. A dealer may in some circumstances be held out by a finance company as their agent. A dealer may in express terms be made an agent. A dealer may for some ad hoc purpose be the agent of a finance company. 27His Lordship went on to quote with approval a passage to similar effect from the judgment of Pearson LJ in Mercantile Credit Co Ltd v Hamblin as did Lord Upjohn at 576A, shortly afterwards adding at p573F:- There was little to support a contention that Raven were held out as agents and on the facts of this case I do not consider that mere possession by Raven of the respondents' forms was enough to constitute agency. 28Furthermore, it is important to bear in mind the nature of the agency that was under consideration in that case. It was "a particular agency to receive (the deposit) on behalf of the finance company or ... a general agency which ... included an agency" to so receive the deposit. - see at pp 575G, 575E, 577C, 579A and 568G. 29It is also clear that a factor important to the decision in that case was that the motor dealer and hirer were acting as principals in the transaction whereby the dealer purchased the motor vehicle being traded in - see at pp577, 578 - the result of which was that the dealer held the trade-in price "or its equivalent for the hirer, not because he holds it as agent of the finance company but because it is a cash sum deposited with him or because it is a motor car he is going to buy for himself". - at p 580A. 30In short, Branwhite v Worcester Works Finance Ltd is a decision that on the facts of that case, vis-à-vis the hire-purchase company, the motor dealer was not an agent to receive the deposit. Any dichotomy in the decision in that case was not as stated by Magistrate Bradd in paragraph 14 of his reasons but, if there was one, between the dealer being an introducer of business or an agent "to receive the deposit". In stating the issue as he did in the first sentence of [14] Magistrate Bradd erred in law in his understanding of Branwhite. 31Certainly there were wider statements. There is that of Lord Morris at p573F quoted above. Lord Upjohn said at 577G - 578E:- It is argued that in having possession of the finance company's forms and the ability to settle and fill in all these essential figures he showed that he was acting in the transaction generally as the agent of the finance company. But I do not myself think that this is a realistic approach. A motor dealer must have, if he is to be successful, one or more finance companies willing to enter into the ordinary bona fide hire-purchase agreements with purchasers, many of whom cannot pay the cash price. They must, therefore, supply him with forms and tell him as a matter of common sense the terms upon which they are prepared to do business. ... But I cannot see that this makes (the dealer) an agent of the finance company. ... I cannot see how, in fact, it is possible to spell out of this transaction that in these circumstances the dealer is in any way a general agent for the finance company. 32However, these are not statements of principle but simple commentary inspired by the facts of that case. 33Magistrate Bradd also went on to observe, in [22] - [23] of his reasons that "there is no evidence that Quikfund knew of or acquiesced in Axsiom acting on its behalf, as is required to prove apparent agency" and, "The only representations made or permitted to be made by Quikfund go no further than the circumstances set out in Branwhite and Prosperity". 34 The first of these propositions has 3 elements - firstly, Axsiom acting on Quikfund's behalf, secondly, knowledge or acquiescence on the part of Quikfund of that circumstance, and thirdly, not whether those conclusions should be drawn but whether there was "no evidence" of them. 35As has been indicated there was virtually no evidence bearing on the question of whether Axsiom was purporting to act on Quikfund's behalf other than the documents, only some of which involved Quikfund, themselves, the fact that they were presented as a group for signature by HIC's representatives, what one may infer was the subsequent transmission of the Quikfund documents to Quikfund for its consideration and acceptance of the offer comprised therein and use of the direct debit form, the later arrival of copies of many of the documents in a folder and Ms Semann's evidence. The evidence concerning Mr Gallone was adequately dealt with by Magistrate Bradd, and I need not further refer to it. 36I should say that although Ms Semann said that she did not know if all the "Understanding the Arrangements " documents she had seen were in identical terms, common business practice makes it highly likely that they were. In this situation, Ms Semann's evidence of familiarity with Quikfund purchasing goods from Axsiom and of the "Understanding the Arrangements" document, the inclusion in that later document of the printed words, "All equipment and products are rented through Quikfund Australia" leads to the conclusion that, to the knowledge of Quikfund, Axsiom made a practice of obtaining business that involved, and was calculated to benefit, Quikfund. 37Of course in activities such as those carried out by Axsiom, a vendor has his own interests to pursue. He wishes to sell the goods or services. However there is no necessary inconsistency in the vendor having different interests or roles, though in any consideration of whether he is in fact acting or appearing to act as agent, obviously the possibility of his having more than one role requires a closer analysis of his actions than might be necessary in different circumstances. 38And the characterisation of his actions should also be considered in light of all of the circumstances prevailing. Uninstructed by authority, and acting as a tribunal of fact, I should have thought that the principal motivation behind the provision by a finance company of the company's standard hire purchase, lease or other finance document to a vendor of goods or services was in order to enable that vendor to obtain business or at least an offer of business for the benefit of the finance company. (Whether business or an offer of business would be much influenced by the terms of the document.) While I accept that the possession of such documents has the potential, and perhaps the likelihood, of benefiting the vendor, it is impossible to avoid the conclusion that in the normal run of things such actions by a finance company are directed to benefiting itself. I would also infer that the provision of such documents by a finance company was implicitly conferring on that vendor authority to use them and to obtain that business or offer. 39That conclusion is a fortiori when an incident of the vendor's business seems to be to go out to the "highways and byways of the world" in pursuit of business or advertising the availability of credit or other finance facilities. Experience of advertisements to which as members of the public we are all subjected shows retailers often make credit terms as much a selling point as the quality or desirability of goods offered. 40When the matters just referred to are combined with the obvious nature of Quikfund's business, this evidence leads to the inferences that Quikfund knew Axsiom was obtaining business or offers of business designed and calculated to benefit Quikfund and both provided its forms to Axsiom and did so in order that Axsiom would obtain the signatures of Axsiom's customers on those forms. While of course, Axsiom was acting in furtherance of Axsiom's own interests, it seems to me inevitable that Quikfund knew of and acquiesced in Axsiom acting in furtherance of Quikfund's interest. If Axsiom was acting on Quikfund's behalf, there is a wealth of evidence that Quikfund knew and acquiesced in Axsiom doing so. 41But to return to the first question, whether Axsiom was in fact acting on Quikfunds' behalf. While Axsiom was undoubtedly acting in its own interests, in circumstances where it had Quikfund's implicit authority to use the documents, to have them executed and then dealt with in Quikfund's interest, it seems to me unrealistic to say Axsiom was not also acting on Quikfund's behalf. 42I return to the second issue, viz. whether Quikfund knew of or acquiesced in Axsiom acting on its behalf. I have already indicated that there was evidence that Quikfund knew or acquiesced in Axsiom acting on Quikfund's behalf. At the very least Quikfund represented to HIC that the vendor had Quikfund's authority. 43In Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising (1975) 133 CLR 72 at 80, it was held that supplying someone with a blank order form amounts to arming the recipient with a document that, when signed, bears the hallmark of authenticity and thus amounts to conferring ostensible authority. The supply of hire purchase or lease forms of a finance company in order that the recipient may obtain signatures to those forms from potential customers must surely have a similar effect or, at the very least, provide evidence to that effect. 44The issue was the subject of consideration in Flexirent Capital Pty Ltd v EBS Consulting Pty Ltd & Ors [2007] VSC 158 at [203]. There, after an extensive review of authority Whelan J summarised his conclusions:- The principles which I draw from this analysis of the authorities having particular relevance here are the following: (a) Apparent authority operates as an estoppel preventing a principal from asserting that the principal is not bound by a contract where the principal has held the agent out as having authority. (b) The holding out may be of a general character, arising for example out of an office or position in which the principal places the agent, or it may be specific to a particular transaction. The holding out may take the form of the setting up of an organisation or structure which presents to outsiders an appearance of authority in the agent. (c) The holding out must be conduct by the principal, not the agent. A third party cannot rely upon the agent's own representation as to authority. But this does not mean that the agent's conduct is to be ignored. The principal may hold out the agent as having authority by permitting the agent to act in a certain way or to make representations about himself or herself, or the principal may hold the agent out by equipping or arming the agent with a document or thing which enables the agent to assert authority with the hallmark of authenticity. (d) The holding out may also result from permitting an agent to act in a certain manner, or by equipping or arming the agent, or by a failure to take proper safeguards against misrepresentation by the agent. (e) The principal's conduct is to be assessed as a whole and in its totality. (f) The apparent strictness of the approach in Russo-Chinese Bank and in Armagas in relation to the known existence of a limitation upon the agent's authority must be read in the light of the High Court's emphasis in Pacific Carriers upon the need to consider the totality of the principal's conduct, and in the light of the High Court's analysis in Crabtree Vickers and in Pacific Carriers of the circumstances in which an agent's assertion of authority may, in the particular context, be a representation or holding out by the principal. As the decision in Essington well demonstrates, the issue is to be resolved upon an analysis of the particular facts of each case. In a particular case a known limitation upon an agent's authority might prevent an estoppel from arising. It seems to me that that would not invariably be the case, as it is necessary to assess the whole of the principal's conduct in the particular circumstances, and, in particular circumstances, a holding out may exist which it would be inequitable to allow the principal to resile from, notwithstanding the existence of a known limitation upon the agent's authority. 45Quikfund's actions fall squarely within these words. 46While what conclusions should be drawn from evidence raises an issue of fact, whether there is evidence of something is a matter of law. Although in part of what I have said I have expressed conclusions as to what I would infer from the evidence, I have done so for the purpose of demonstrating a proposition of law, viz that Magistrate Bradd erred in his conclusions that "there is no evidence that Quikfund knew of or acquiesced in Axsiom acting on its behalf, as is required to prove apparent agency". 47However, as I have indicated, I approached the above analysis "uninstructed by authority" and there is authority to the contrary effect. 48There are the remarks and the decision in Branwhite v Worcester Works Finance Ltd, to which I have referred although, as I have pointed out, the decision was on facts appreciably different from those here. The decision was that the dealer was not the agent of the financier to receive the deposit and two of the five Law Lords dissented. 49In Custom Credit Corporation v Lynch [1993] 2 VR 469 Marks J at p486 acknowledged that agency depended on the facts of a particular case, remarked that the position of a caravan dealer in that case might be considered to have been analogous to that of a finance or insurance broker and that the dealer would have had a conflict of interest if he was the agent of Custom Credit. His Honour continued:- But everything done by Mr Cheap (the dealer) purported to be done for the respondent.. The mere possession of the appellant's forms is not enough to constitute agency (Branwhite's Case, per Lord Morris, at p.575), nor is the fact that commission was payable for the introduction: (Con-stan's Case, at p.234; Octapon Pty Ltd v Esanda Finance Corporation Ltd (unreported, NSW Supreme Court, 3 February 1989), at pp.27-8), nor is the filling in of the charges on the forms: Branwhite's Case, at p.577. The relationships in this case between the appellant, the respondent and Mr Cheap were very similar, if not identical, to those in Luff's Case, where this court held that the dealer was not an agent of the financier but of the borrower. 50Fullager J, and with some qualifications, Ormiston J agreed with Marks J but it is by no means obvious that the position of a dealer in caravans or other merchandise can properly be considered analogous to that of a broker as was the intermediary in Constan's case - Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1985-6) 160 CLR 226. 51The circumstances in Custom Credit Corporation v Luff (unreported, Victorian Full Court, 27 November 1990) were appreciably different. After negotiations for the sale of a car and the trade-in of another had been concluded and the purchaser had informed the dealer that she required finance, the car dealer phoned details of the purchaser's personal circumstances to the finance company for finance approval. An employee of the finance company then prepared a "dealer plan pre-submit form of document" that contained details of the purchaser's financial situation. Later the financier approved the application for finance and a lease purchase agreement in the form of an offer by the purchaser to lease the vehicle with an option to purchase was prepared. In the document the purchaser expressly acknowledged that the dealer was not the agent of the financier. There is a deal to be said for the view that Marks J's reliance on the earlier decision provides a prime example of the risk referred to in the passage from North Australian Cement Limited v FC of T that I have quoted. 52In Octapon Pty Ltd & Ors v Esanda Finance Corporation Ltd (unreported, Cole J, 3 February 1989), the intermediary was a finance broker who was approached by someone seeking finance on a truck. At his request the intermediary was supplied with details of the vehicle(s) involved, prepared a finance application and submitted it to Esanda, a company with which he had previously dealt as a broker. In due course the application was approved. For his efforts the intermediary received commission from Esanda and a fee from the company that had obtained the finance. Again, the circumstances were appreciably different from those here or in Custom Credit Corporation v Lynch 53In NMFM Property Pt Ltd v Citibank Ltd (No 10) (2000) 107 FCR 270, one of the decisions relied on by Magistrate Bradd, at [544] - [553] under a heading "The Distinction between an Agent and a mere Introducer of Business" Lindgren J considered the position of a group of persons, referred to as the "Advisers" whose misrepresentations were said to have induced a group of investors to enter into certain transactions. After discussing Branwhite v Worcester Works Finance Ltd, Custom Credit Corporation Ltd v Lynch, Custom Credit Corporation Ltd v Luff and Octopon Pty Ltd v Esanda Finance Corporation Ltd his Honour concluded 561 There are similarities and differences between Branwhite, Custom Credit v Lynch and the present case. For example, Citibank furnished LKFM with more classes of Citibank forms for completion and signing by borrowers than Worcester seems to have supplied to Raven. In Branwhite, Raven, the counterpart of an Adviser in the present case, was involved in the transaction as a principal in its own right. The Advisers did, however, have roles in the present case in addition to any as between Citibank and the Investor, notably, that of agent for NM. In all three cases, apart from Citibank's appointment of LKFM as its agent under the written agency agreement of 3 April 1989, there was no formal appointment or conferral of authority to act for, or on behalf of, the putative principal. Citibank's practice of distinguishing between its "agents" and mere introducers of business suggests that the present case is perhaps stronger than Branwhite and Custom Credit v Lynch against the Advisers (as ever, other than LKFM under its written agency agreement) being agents of Citibank. 562 In Chapter 6 I will consider in some detail the roles played by the Advisers in the transactions, but it is convenient to note at once that the facts of the present case in relation to the supply of Citibank forms and the Advisers' role in relation to the completion, signing and forwarding (to Citibank) of them, does not suggest to me that any different approach from that taken in Branwhite and Custom Credit v Lynch is appropriate. That is, that activity did not characterise the Advisers as agents of Citibank and was consistent with their being mere introducers of business. 54Quikfund (Australia) Pty Ltd v Prosperity Group International Pty Limited (in Liq) [2013] FCAFC 5 was a case where a Mr Croom, another salesman of telephone equipment and services made misrepresentations in the course of inducing a customer (Prosperity) to contract for the supply of such items. Mr Croom was the regional manager of a company referred to as QCC. The misrepresentations had been made to a Mr King who had represented Prosperity in the transactions. In issue in the appeal to the Full Federal Court was whether at the time the salesman was acting as agent for Quikfund and another financier who had purchased the equipment and then hired it to the end customer. 55It was contended on behalf of Prosperity that Quikfund and AER should be held liable for misleading statements made by Mr Croom because Quikfund and AER had appointed QCC and/or Mr Croom as their agent to procure persons to seek finance from them and that the statements which Mr Croom made were within the general class or scope of statements which they thereby authorised him to make. It was common ground that there was no evidence of any formal agency agreement between Mr Croom or QCC and either Quikfund or AER 56Addressing the issue of ostensible authority, the Court remarked:- 72 As far as ostensible authority is concerned, the only conduct on the part of Quikfund or AER that is capable of constituting the necessary representation as to Mr Croom's authority upon which Prosperity could have relevantly relied comprised the actions of those corporations in making it possible for Mr Croom to have possession of their standard equipment lease and associated documentation. Whether, by that conduct, either Quikfund or AER made such a representation and whether Prosperity relied upon that representation are both questions of fact which fall to be decided after considering all of the relevant circumstances. 73 For reasons which we shall shortly explain, we think that the evidence tendered at trial in the present case did not justify a conclusion that Mr Croom and QCC acted with the authority (actual or ostensible) of either Quikfund or AER in the dealings which Mr Croom and QCC had with Prosperity. 57The members of the Court then proceeded to quote at length Lindgren J's remarks in NMFM Property Pt Ltd v Citibank Ltd (No 10) concerning Branwhite v Worcester Finance Ltd and continued:- 75 As Lindgren J observed in NMFM Property Pty Ltd v Citibank Ltd (No 10) (at 394-396 [554]-[562]), the reasoning in Branwhite v Worcester Works Finance Ltd was adopted and applied by the Appeal Division of the Supreme Court of Victoria in Custom Credit Corporation Ltd v Lynch [1993] VicRp 86; [1993] 2 VR 469; by the Full Court of the Supreme Court of Victoria in Custom Credit Corporation Ltd v Luff (unreported, 27 November 1990); and by Cole J in Octapon Pty Ltd v Esanda Finance Corporation Ltd (unreported, 3 February 1989). 76 In NMFM Property Pty Ltd v Citibank Ltd (No 10), Lindgren J held that the fact that the advisers in that case had possession of Citibank forms, the fact that they assisted the customers to complete those forms and the fact that they forwarded the completed forms to Citibank, whether taken individually or in combination, did not lead to the conclusion that the advisers were agents of Citibank but was consistent with them being mere introducers of business to Citibank. 77 We agree with the observations made by Lindgren J in NMFM Property Pty Ltd v Citibank Ltd (No 10) which we have extracted at [74] and referred to at [75] and [76] above and with his analysis of Branwhite v Worcester Works Finance Ltd. We shall apply those observations to the case at hand. 78 At 493-495 [1023]-[1032] in NMFM Property Pty Ltd v Citibank Ltd (No 10), Lindgren J considered whether there was any actual authority that had been given to the advisers outside the relevant formal contractual arrangements. His Honour observed that a mere introducer of business could become an agent without ever entering into a formal agency agreement. He went on to note that a finding of actual authority depended on the existence of consensus. His Honour said that the Court ought not to find such a consensus if to do so would be inconsistent with the express arrangements between the parties. 58Their Honours then addressed the various matters that had been relied on by the trial judge for his conclusion that the salesman had been acting as the agent of Quikfund and AER. They included:- (c) Quikfund and AER always dealt through brokers and never dealt with the ultimate consumers directly; (d) Mr Croom had possession of both Quikfund's and AER's lease documentation in blank as well as other Quikfund and AER documentation (e) Mr Croom was able to and did, in fact, cause to be forwarded to Mr King ... a copy of the various documents which Mr King had signed on behalf of Prosperity on 25 October 2007. 59In respect of these matters the Court said:- 86 Factors (c), (d) and (e) are in the same category as very similar factors considered in Branwhite v Worcester Works Finance Ltd and the Australian cases which have followed Branwhite v Worcester Works Finance Ltd (NMFM Property Pty Ltd v Citibank Ltd (No 10); Custom Credit Corporation Ltd v Lynch; Custom Credit Corporation Ltd v Luff; and Octapon Pty Ltd v Esanda Finance Corporation Ltd). The transactions in question in the present case are typical lease finance transactions. In addition, there are features of the present case which make it even less likely that Mr Croom and QCC acted as the agents of Quikfund and AER in their dealings with Prosperity. First, there is no evidence as to how and why Mr Croom came to have Quikfund and AER documentation. Second, there was no binding arrangement between Quikfund and AER, as owner, and Prosperity, as hirer, until Quikfund and AER accepted the deal by executing the contractual documentation. All that Mr Croom did was complete the relevant forms, procure the hirer's signature on them and then submit those forms to Quikfund and to AER for their consideration. Third, there was no communication between Quikfund or AER and QCC and Mr Croom that could conceivably support a finding of agency. 87 It must also be remembered that Mr Croom was not employed by or an officer of either Quikfund or AER and that there was nothing to suggest that QCC (or Technix) had ever been authorised by Quikfund or AER to do anything on its behalf. The evidence of common shareholdings and directorships was not directed with any precision to the relevant period (from about September 2007 to late March 2008) and therefore did not establish the precise shareholdings in that period. That evidence did not usefully add to the evidence relevant to agency. 60After also referring to the other matters relied on by the trial judge as establishing actual or ostensible agency, matters to which it is unnecessary for me to refer, the Court observed that the "primary judge erred when he found that, in his dealings with Prosperity, Mr Croom had acted as the agent of Quikfund and AER". 61There is no doubt that there are substantial similarities (but no identity) between the facts in Prosperity and those here. However, with due respect to those who decided that case and the other cases referred to in [86] of that judgment, the decisions provide prime examples of what Viscount Haldane criticised in Kreglinger v New Patagonia Meat and Cold Storage Company Limited. A finding of fact by 3 judges out of 5, with the other 2 judges dissenting, in a case having its own particular circumstances, that a car dealer was not an agent to receive a deposit, has been treated as authoritatively deciding that other intermediaries, in significantly different circumstances, are not agents at all. 62In Quikfund (Australia) Pty Ltd v Chatswood Appliance Spare Parts Pty Ltd [2013] NSWSC 646 Harrison J observed that the facts of the case before him were not relevantly distinguishable from those in Quikfund (Australia) Pty Ltd v Prosperity Group International Pty Limited (in Liq) and reached a similar conclusion. His Honour held on facts almost identical with those here that the magistrate from whom the appeal before his Honour was brought had erred in finding that the salesperson in that case had ostensible authority to act for Quikfund. His Honour remarked:- ... all that Ms Seifor did was complete the relevant forms, procure the hirer's signature upon them, and submit them to Quikfund for consideration. She neither required nor acquired the authority of Quikfund, ostensible or otherwise, for that purpose. 63I would agree that Quikfund's authority was not required. At least on the facts of this case, I would myself have thought that it was acquired. 64In Sherberry Pty Ltd v Quikfund (Aust) Pty Ltd [2012] VCAT 1798 a senior member of the Victorian Civil and Administrative Tribunal concluded, at [73] and [75] that "by equipping (the salesman) with forms of a written agreement on its letterhead and permitting him to "sell" that agreement as part of a package of telephone services, Quikfund conducted itself so as to give the impression that (the salesman) spoke on behalf of Quikfund when he said that the whole telephone services arrangement would not cost more than $347.90 per month and that the equipment was free as part of the arrangement" and that "the representations ... were made with the apparent authority of Quikfund...". 65In arriving at his conclusion the member observed, at [61] "It is well established that in determining whether one party is the agent of another (the principal) it is necessary to consider ... the manner in which the relationship operates, "in a real and practical sense". Perpetual Trustees v Schmidt and Anor [2010] VSC 67 ... at [119]" and, at [63], quoting from some of the passages I have set out above from the decision in Flexirent Capital Pty Ltd v EBS Consulting Pty Ltd & Ors: 66It must be acknowledged that it would appear that the member was not appraised of the decision in Branwhite v Worcester Finance Ltd or of the decisions following it to which I have referred. 67One further matter should be mentioned. Possibly inspired by remarks I had made during the course of the hearing, on 18 November last counsel for the Plaintiff sought leave to tender in evidence the decisions in Millenium v Quikfund, Sherberry v Quikfund, Prosperity v Quikfund, Quikfund v Chatswood Appliance Spare Parts, Quikfund v Point to Point and Quikfund v Solitaire and to use these as evidence of Quikfund's course of business or at least of the provision by Quikfund of documents to other salespersons. With an eye to the terms of s91 of the Evidence Act, it was submitted that the fact that there were salespersons to whom documents were provided by Quikfund was not a fact in issue in those proceedings and it was difficult to see any prejudice to the Defendant. As foreshadowed by counsel for the Plaintiff, the Defendant has opposed the tender and in the event that the evidence is admitted has indicated that it seeks to be heard in relation to it. 68The proceedings before me were an appeal upon the ground that the tribunal below had erred on a question of law or mixed fact and law. While the decisions tendered might well have been relevant at first instance or be relevant in any rehearing, they do not bear on the issues I have to decide. The request to tender those documents in this Court is denied. 69In the result, it is clear that there are numerous decisions to the effect that in circumstances similar to those here, a vendor of goods has not been the agent of the financier notwithstanding the use in a variety of ways of the financier's forms. However, the issue is one of fact, to be determined in the particular case. As I have sought to demonstrate there was evidence in this case that Mr Rabba was acting as agent for and with the actual or ostensible authority of Quikfund and evidence that Quikfund knew of and acquiesced in Axsiom acting so on its behalf. Magistrate Bradd erred in law holding that there was no such evidence. And though it is unnecessary for me to reach a concluded view, it seems to me he also erred in regarding Branwhite as establishing principles, at least ones relevant to his decision. 70Accordingly, the appeal should be allowed and the matter remitted for rehearing. The Respondent, having elected to oppose that decision, should pay the costs in this Court. Given the decision of Magistrate Bradd and the reasons for allowing this appeal, the further hearing should be before a different magistrate. The costs of the proceedings below should abide the decision in the rehearing. The formal orders are:- (i) Appeal allowed; (ii) Set aside the orders of Magistrate Bradd made on 14 May 2013 in proceedings 2012/34204 in the Local Court at Downing Centre; (iii) Remit those proceedings to the Local Court for rehearing by a magistrate other than Mr Bradd; (iv) Order the Defendant in this Court to pay the Plaintiff's costs of and incidental to this appeal.