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In the decades following Armagas v. Mundogas, a leading case on some basic principles of agency law, the case has become surrounded by at least as many lukewarm lieutenants as stout defenders. There is in fact an understandable tension between not subjecting persons to transactions to which they have demonstrably not agreed and protecting the expectations of those who not unreasonably have trusted an intermediary accurately to report their principal’s willingness to transact. Protecting expectations, including “the security of contracting”, is generally more fashionable amongst lawyers now than it once was. This article addresses two of the holdings in Armagas (the need for a holding out by a (non-consenting) principal as to an agent’s authority before liability arises in either contract or the tort of negligent misstatement) and two of the dicta (being put on inquiry as to a lack of authority, and the unreliability of a course of dealing between the parties), and reviews the pronouncements of United Kingdom and England and Wales judges on each of them. The article seeks to reinforce Armagas on the first three, but not the last.

An important issue of corporations law is whether the shareholders of the company (or members of other sorts of corporation) can dictate to directors or the management committee on a particular matter, or override a management decision. The answer will often turn on the relevant incorporation statute. This article is concerned with the position under the standard company statutes used in such countries as the United Kingdom and New Zealand. It argues that under this longstanding model, shareholders can by special majority using the constitution, or otherwise by acting unanimously, dictate to and override directors on a management issue. The focus of the article is a recent decision of the New Zealand Court of Appeal, Att-Gen v. Ririnui (2015), currently under appeal to the Supreme Court.

The common law regarding the formation of contracts made through an agent on behalf of a principal suffering from latent mental incapacity is still undeveloped. This article argues that, in general, such a principal can confer actual authority to contract on an agent so long as the agent (reasonably) is, and remains, unaware of the incapacity. On the same basis, an incapax principal can manifest to a third party that such an appointment has been made, thereby creating apparent authority in the agent.

This article starts with an overview of the debates over classification in private law that took place in the latter period of Peter Birks’s career. It does so by setting out the Birksian taxonomy and by collecting various extracts from Birks’s voluminous output, then contrasts those extracts with the views of a selection of his most prominent critics. The article next turns to a defence of Birks’s project and its aims of promoting rationality, the confinement of discretion, and modesty of function in the common law. The greater part of the article is devoted to showing how, in tort law particularly, New Zealand common law has lost its modesty and is intruding on personal freedoms. Instead of requiring an undertaking before a party becomes liable for nothing more than causing damage to another’s wealth, liability is being imposed from without by fudging the boundaries between contract and tort, and by using as tools nothing much sharper than “justice and fairness”. The final section of the article then turns to criticise, on similar grounds, the concept of unjust enrichment as promoted by Birks himself.

This article is an analysis of the related cases R v Gao and R v Hurring tried in the New Zealand District Court. These criminal proceedings arose out of an error of Westpac bank that attracted worldwide attention, namely the granting of an overdraft facility of $10 million when only $100,000 had been requested. The defendants were charged and convicted for their respective actions following that error, including drawing on the facility and spending or transferring the resulting funds. The principal charges against each were those of theft from Westpac pursuant to s 219 of the Crimes Act 1961. It is the thesis of this article that such theft charges were not available against either defendant. The article then proceeds to consider a range of alternative possible offences on the facts. It concludes that, at least in relation to Gao, charges of being an absconding debtor, or a party to defrauding creditors, might have been more appropriate, carrying lesser maximum sentences. The near fortuity that it was Gao’s company that applied for the overdraft may also have made theft from one’s own company a possibility against Gao (under s 220 of the 1961 Act), but that too would have involved very different charges from those brought.