On the Relations between Agent and Principal: Angove's Pty Ltd v Bailey
| Published date | 01 January 2018 |
| DOI | http://doi.org/10.1111/1468-2230.12320 |
| Date | 01 January 2018 |
ruling must be looked at in this particular context and it does not set a clear
precedent for similar disputes, should they arise. The logistical and practical
issues would probably be similar, but the court’s proverbial hands would be
tied if another hospital trust or medical facility was unwilling to co-operate or
surviving relatives refused to honour the dying person’s request or simply could
not afford the costs of the procedure (assuming that there were insufficient
funds in the deceased’s estate to cover these costs).
Beyond cryonics, the decision in Re JS raises more substantive legal issues
around the fate of human remains. Family funeral disputes will continue to be a
sad yet fertile source of litigation, and where separated parents are fighting over
the remains of a dead child, courts will still have to search for specific ways of
ending the impasse and favouring one parent over another. This is something
which is much more difficult where both parents had close and enduring
emotional relationships with their child, unlike the unfortunate situation in
the present case. The question of prospective rulings may arise again, given
the court’s willingness to issue one in Re JS; and while fully merited on
the facts, it will be interesting to see how future cases are determined and
how any unwarranted applications are dispensed with. Finally, there is the
issue of whether an individual’s funeral instructions should be legally binding,
something which was also brought into sharp focus in the present case and
will continue to be a source of debate. If the Law Commission decides to look
at this area in the future, the deceased’s own preferences could become the
primary reference point in funeral disputes. Courts would give effect to them
by granting custody of the corpse or post-cremation ashes to the relative or
individual who was intent on doing what the deceased wanted.
On the Relations between Agent and Principal:
Angove’s Pty Ltd vBailey
JuliusA.W.Grower
∗
In Angove’s Pty Ltd vBailey the Supreme Court faced ‘two important and controversial questions
of commercial law’: whether an agent’s authority could ever be ‘irrevocable’, and whether the
receipt of money by an imminent insolvent could ever give rise to a constructive trust of that
sum. It answeredboth in the affir mative,albeit subject to heavy qualifications. This note supports
these conclusions in principle, however it will argue that the court’s reasoning, especially in
answering the second question, leaves much to be desired. In particular, it ignored the central
role of fiduciary law in regulating the conduct of agents.
∗Teaching Fellow, Faculty of Laws, UCL. Thanks are due to Charles Mitchell, Nick McBride, Niamh
Connolly and Maria Lee. Any errors are solely my own.
C2018 The Author. The Modern Law Review C2018 The Modern Law Review Limited.
(2018) 81(1) MLR 132–153 141
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