Reluctant Bedfellows: Want of Authority and Knowing Receipt
| Published date | 01 January 2012 |
| DOI | http://doi.org/10.1111/j.1468-2230.2012.00890.x |
| Date | 01 January 2012 |
including the requirement that they be ‘seriously arguable’, will render the
defence impractical.The most significant practical impact is likely to be proce-
dural, in terms of possession proceedings and the management of the list, rather
than on outcomes. Equally, it is clear that these two cases are unlikely to be the
final word on this subject – there are many loose ends to tie up, and different
contexts in which proportionality may yet unravel in even discretionary posses-
sion claims.88 So, the reception of proportionality into English law is likely to be
far more than symbolic, and is, as yet, uncertain.
Reluctant Bedfellows:Want of Authority and
Knowing Receipt
Rebecca Lee*and Lusina Ho**
The case note examines the recent decision of the Hong Kong Court of Final Appeal in
Thanakharn Kasikorn Thai Chamkat (Mahachon) vAkai Holdings Ltd, where Lord Neuberger of
Abbotsbury adopted the test of irrationality in determining whether a defaulting agent had
apparent authority to act on behalf of his principal to confer benefits on a third party.His Lordship
further held that a concurrent claim in knowing receipt arose against the third party, and the test
of unconscionability is substantially the same as that of irrationality.The present note argues that
symmetry of the two tests is not necessary,for knowing receipt and apparent authority deal with
issues that are categorically different and serve different purposes. It also examines,in the context
of benefits conferred upon an underlying agreement that is void, the oft-overlooked issue as to
what amounts to receipt for the purpose of knowing receipt.
INTRODUCTION
Where an agent wrongfully entered into an agreement with a third party and
conferred benefits on the latter, on what ground(s) could the principal seek
redress from the third party? Should it be want of authority at common law
or knowing receipt in equity? In Criterion Properties Plc vStratford UK Properties
LLC,1Lord Nicholls made the ‘uncharacteristically obscure remark’,2at least in
relation to executory contracts, that the issue turned on whether the agent had
authority to enter into the agreement. If he did, the agreement was valid and
passed good title to the third party, thus leaving no room to invoke the doctrine
88 lan, 2010); D. Cowan & M. McDer mont, Regulating Social Housin
*Faculty of Law, The University of Hong Kong. The authors would like to thank Suchita Bhojwani,
Matthew Conaglen,Eugene Fung, Tim Kentish,Richard Nolan, Francis Reynolds,PeterWatts, and the
anonymous reviewerfor discussion about the Akai litigation and invaluable comments on earlier drafts.
**Faculty of Law, The University of Hong Kong.
2Thanakharn Kasikorn Thai Chamkat (Mahachon) vAkai Holdings Ltd (2010) HKCFAR 479 at [128]
per Lord Neuberger.
Rebecca Lee and Lusina Ho
© 2012 TheAuthors. The Modern Law Review © 2012The Modern Law Review Limited. 91
(2012) 75(1) MLR 78–121
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