CHAPTER 7

Formalities
[7.05] THE STATUTE OF FRAUDS............................................................................................ 195
[7.10] Sixth Interim Report.......................................................................... 196
[7.15] THE AUSTRALIAN PROVISIONS.................................................................................... 197
[7.20] Civil Law (Property) Act 2006 (ACT)..................................................... 197
[7.25] Conveyancing Act 1919 (NSW)........................................................... 198
[7.30] Law of Property Act (NT).................................................................... 198
[7.35] Property Law Act 1974 (Qld)............................................................... 198
[7.40] Law of Property Act 1936 (SA)............................................................. 198
[7.45] Instruments Act 1958 (Vic)................................................................. 199
[7.50] Conveyancing and Law of Property Act 1884 (Tas)................................... 199
[7.55] Mercantile Law Act 1935 (Tas)............................................................ 199
[7.60] Law Reform (Statute of Frauds) Act 1962 (WA)....................................... 200
[7.70] THE FORMALITIES REQUIRED...................................................................................... 200
[7.75] Documents in electronic form..................................................................... 200
[7.90] Signature.................................................................................................... 201
[7.95] Pirie v Saunders................................................................................ 202
[7.105] THE CONSEQUENCES OF NON-​COMPLIANCE........................................................... 204
[7.105] Unenforceability.......................................................................................... 204
[7.110] Part performance........................................................................................ 204
[7.112] Pipikos v Trayans.............................................................................. 205
[7.125] Constructive trust, estoppel, misleading conduct and restitution................. 212

THE STATUTE OF FRAUDS

[7.05] The common law does not require the parties to a contract to record their agreement
in writing. An agreement is enforceable at common law even though there is no written record
of it. Formal requirements are imposed by legislation in respect of some types of contract, such
as building contracts and contracts for the provision of consumer credit. This chapter focuses
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on the statutory provisions in force in all Australian jurisdictions that render a contract for the
sale of land unenforceable unless it is made or evidenced in writing. These are the successor
provisions to a 1677 English statute known as the Statute of Frauds (UK) (29 Car II c 3).
The Statute of Frauds provided, in effect, that certain contracts would be unenforceable
unless in writing or evidenced by some memorandum in writing and signed by the party to be
sued. The statute was later received as part of the law of the Australian colonies. The preamble
to the statute stated its purpose to be “the prevention of many fraudulent practices which are
commonly endeavoured to be upheld by perjury and subornation of perjury”.
The most important provisions of the Act were those contained in ss 4 and 17. Section 4
provided as follows:
no action shall be brought whereby to charge any executor or administrator upon any special
promise, to answer damages out of his own estate; or whereby to charge the defendant upon
any special promise to answer for the debt, default or miscarriages of another person; or to
charge any person upon any agreement made upon consideration of marriage; or upon any
contract or sale of lands, tenements or hereditaments, or any interest in or concerning them; or
upon any agreement that is not to be performed within the space of one year from the making
thereof, unless the agreement upon which such action shall be brought, or some memorandum

[7.05] 195

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or note thereof shall be in writing, and signed by the party to be charged therewith, or some
other person thereunto by him lawfully authorised.

Section 17 provided as follows:

no contract for the sale of any goods, wares, or merchandise, for the price of ten pounds sterling
or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so
sold, and actually receive the same, or give something in earnest to bind the bargain, or in part
payment, or that some note or memorandum in writing of the said bargain be made and signed
by the parties to be charged by such contract, or their agents thereunto lawfully authorised.

Sixth Interim Report

[7.10] United Kingdom Law Revision Committee, Sixth Interim Report (CMD 5449, 1937).
Contemporary opinion is almost unanimous in condemning the statute and favouring its
amendment or repeal.
9. The main criticisms directed against s 4 may be summarised under the following heads:
(1) First and foremost, it is urged that the Act is a product of conditions which have long
passed away. At the time when it was passed, essential kinds of evidence were excluded
(for example, the parties themselves could not give evidence), and objectionable types
of evidence were admitted (for example juries were still in theory entitled to act on their
own knowledge of the facts in dispute). It was an improvement on this state of affairs
to admit the evidence of the parties, even though only to the extent that such evidence
was in signed writing. Today, when the parties can freely testify, the provisions of s 4
are an anachronism. A condition of things which was advanced in relation to 1677 is
backward in relation to 1937.
(2) “The Act”, in the words of Lord Campbell already cited “promotes more frauds than
it prevents”. True, it shuts out perjury; but it also and more frequently shuts out the
truth. It strikes impartially at the perjurer and at the honest man who has omitted a
precaution, sealing the lips of both. Mr Justice FitzJames Stephen (writing of s 17, but
his observation applies equally to s 4 went so far as to assert: “in the vast majority of
cases its operation is simply to enable a man to break a promise with impunity, because
he did not write it down with sufficient formality”: (1885) 1 LQR 1 at 1.
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(3) The classes of contracts to which s 4 applies seem to be arbitrarily selected and to
exhibit no relevant common quality. There is no apparent reason why the requirement
of signed writing should apply to these contracts, and to all of them and to no others.
(4) The section is out of accord with the way in which business is normally done. Where
actual practice and legal requirement diverge, there is always an opening for knaves to
exploit the divergence.
(5) The operation of the section is often lopsided and partial. A and B contract: A has signed
a sufficient note or memorandum, but B has not. In these circumstances B can enforce
the contract against A, but A cannot enforce it against B.
(6) The section does not reduce contracts which do not comply with it to mere nullities,
but merely makes them unenforceable by action. For other purposes they preserve
their efficacy (for what other purposes precisely, is doubtful; see (1936) 51 LQR at 49).
Anomalous results flow from this: for example, in Morris v Baron [1918] 1 AC 1, a
contract which complied with the section was superseded by a second contract which
did not so comply. It was held that neither contract could be enforced: the first, because
it was validly rescinded by the second, the second because, owing to its purely oral
character, no action could be brought on it. This was a result which the parties could
not possibly have intended.

196 [7.10]

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Sixth Interim Report cont.

(7) Apart from its policy the statute is in point of language obscure and ill-​drafted. “It is
universally admitted,” observed the original editor of Smith’s Leading Cases, “that no
enactment of the legislature has become the subject of so much litigation.” This could
hardly have been so if its terms had been reasonably lucid.
10. Most of the above criticisms apply, both to s 4 and s 17 of the Statute of Frauds, and therefore to
s 4 of the Sale of Goods Act 1893, so far as it reproduces that section.
A word or two should perhaps be said in amplification of the criticisms under heads (3) and (4) above.
Criticism (3). Assuming that there may be classes of contracts in respect of which special evidentiary
requirements should be insisted on as a condition of their enforceability, can it be said that there is
any ground for singling out the particular classes of contracts named in ss 4 (and ss 17). of the Statute
of Frauds?
It cannot be supposed that the framers of this legislation selected them purely at random. They
would seem to have had in mind more than one criterion:
(A) the value or importance of the subject matter. The more considerable the subject
matter, the greater the inducement to commit perjury, and the desirability of evidence
which shall be proof against perjury (this seems to have been the criterion applied by
the legislature in including contracts affecting land: contracts for sale of goods of a
value (or price) of £10 or upwards —​more substantial amount then than now: and
possibly agreements in consideration of marriage);
(B) the interposition of a long interval between the making of the contract and its complete
performance. The longer this interval, the worse will be the recollection of witnesses,
and the more difficult it will be to expose an invention (“contracts not to be performed
within a year of the making thereof”);
(C) the one-​sided or disinterested character of the ostensible bargain. The law, perhaps
cynically, regards such bargains with scepticism, and is inclined to require specially
cogent evidence of their existence (promises by an executor or administrator to answer
damages out of his own estate: contracts of guarantee).


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THE AUSTRALIAN PROVISIONS

[7.15] In Australia, the legislative provisions dealing with the formalities introduced by the
Statute of Frauds vary considerably from jurisdiction to jurisdiction. In most jurisdictions, the
Statute of Frauds has been repealed, and only some of its provisions re-​enacted. The provisions
affecting contracts for the sale of land are listed in the following extract.

Civil Law (Property) Act 2006 (ACT)

[7.20] Civil Law (Property) Act 2006 (ACT), s 204.
Proceedings do not lie on certain unwritten agreements
(1) A proceeding does not lie against a person on a contract for the sale or other disposition of
land unless the agreement on which the proceeding is brought, or a memorandum or note of
the agreement, is in writing signed by the person or by the person’s agent properly authorised
in writing.



[7.20] 197

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Conveyancing Act 1919 (NSW)

[7.25] Conveyancing Act 1919 (NSW), s 54A.
Contracts for sale etc of land to be in writing
(1) No action or proceedings may be brought upon any contract for the sale or other disposition
of land or any interest in land, unless the agreement upon which such action or proceedings
is brought, or some memorandum or note thereof, is in writing, and signed by the party to be
charged or by some other person thereunto lawfully authorised by the party to be charged.



Law of Property Act (NT)

[7.30] Law of Property Act (NT), s 62.
Contracts for sale etc of land to be in writing
No proceeding may be commenced on a contract (wherever made) for the sale or other disposition
of land unless the contract on which the proceeding is commenced, or some memorandum or note
of the contract, is in writing and signed by the party to be charged or by a person lawfully authorised
by the party.



Property Law Act 1974 (Qld)

[7.35] Property Law Act 1974 (Qld), s 59.
Contracts for sale etc of land to be in writing
No action may be brought upon any contract for the sale or other disposition of land or any
interest in land unless the contract upon which such action is brought, or some memorandum or note
of the contract, is in writing, and signed by the party to be charged, or by some person by the party
lawfully authorised.
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

Law of Property Act 1936 (SA)

[7.40] Law of Property Act 1936 (SA), s 26.
Contracts for sale of land to be in writing
(1) No action shall be brought upon any contract for the sale or other disposition of land or
of any interest in land, unless an agreement upon which such action is brought, or some
memorandum or note thereof, is in writing, and signed by the party to be charged or by some
person thereunto by him lawfully authorised.



198 [7.25]

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Instruments Act 1958 (Vic)

[7.45] Instruments Act 1958 (Vic), s 126.
Certain agreements to be in writing
(1) An action must not be brought to charge a person upon a special promise to answer for
the debt, default or miscarriage of another person or upon a contract for the sale or other
disposition of an interest in land unless the agreement on which the action is brought, or a
memorandum or note of the agreement, is in writing signed by the person to be charged
or by a person lawfully authorised in writing by that person to sign such an agreement,
memorandum or note.
(2) It is declared that the requirements of sub-​section (1) may be met in accordance with the
Electronic Transactions (Victoria) Act 2000.



Conveyancing and Law of Property Act 1884 (Tas)

[7.50] Conveyancing and Law of Property Act 1884 (Tas), s 36.
Contracts for sale, &c, of land to be in writing
(1) No action may be brought upon any contract for the sale or other disposition of land, or
any interest in land, unless the agreement upon which such action is brought, or some
memorandum or note thereof, is in writing, and signed by the party to be charged or by
some other person thereunto by him lawfully authorized.



Mercantile Law Act 1935 (Tas)

[7.55] Mercantile Law Act 1935 (Tas), s 6.
Certain parol promises and agreements not actionable
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No action shall be brought whereby to charge any executor or administrator upon any special
promise to answer damages out of his own estate; or whereby to charge the defendant upon any
special promise to answer for the debt, default, or miscarriage of another person; or to charge any
person upon any agreement made upon consideration of marriage; or upon any contract or sale of
lands, tenements, or hereditaments, or any interest in or concerning them; or upon any agreement
that is not to be performed within the space of one year from the making thereof; unless the agreement
upon which such action shall be brought, or some memorandum or note thereof, shall be in writing,
and signed by the party to be charged therewith, or some other person thereunto by him lawfully
authorized.



[7.55] 199

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Law Reform (Statute of Frauds) Act 1962 (WA)

[7.60] Law Reform (Statute of Frauds) Act 1962 (WA), s 2.
Statute of Frauds 1677, s 4 applies in amended form
The provisions of section 4 of the Statute of Frauds 1677, continue in force in this State in relation
to any promise or agreement, whether made before or after the coming into operation of this Act, as
if the following passages were deleted from that section, namely —​
(a) “whereby to charge any executor or administrator upon any special promise to answer
damages out of his own estate; or”;
(b) “or to charge any person upon any agreement made upon consideration of marriage”; and
(c) “or upon any agreement that is not to be performed within the space of one year from the
making thereof”.



[7.65] Note
See also Law of Property Act (NT), s 58; Property Law Act 1974 (Qld), s 56 (in relation to
contracts of guarantee); Sale of Goods Act 1896 (Tas), s 9; Sale of Goods Act 1895 (WA), s 4
(in relation to contracts for the sale of goods over a certain price).

THE FORMALITIES REQUIRED

[7.70] There are five questions that might arise where a document is said to satisfy the statute:

1. whether the document sufficiently identifies the parties to the contract and the terms of
the contract (see Pirie v Saunders (1961) 104 CLR 149 at [7.95]);
2. whether a document that comes into existence before the contract is made can satisfy the
statute (see Pirie v Saunders (1961) 104 CLR 149 at [7.95]);
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3. whether the statute can be satisfied by a number of documents, taken together (see, eg,
Tonitto v Bassal (1992) 28 NSWLR 564);
4. whether the document has been signed (see Pirie v Saunders (1961) 104 CLR 149 at
[7.95]); and
5. whether a document in electronic form can satisfy the statute.

Documents in electronic form

[7.75] Can a document in electronic form (such as a message sent by email or an electronic
record of a sale made over the internet) satisfy the statute of frauds provisions? Two
questions arise:

Is the document “in writing”?

[7.80] Each of the Electronic Transactions Acts (ETAs) provides that, for the purposes of a law
of the relevant jurisdiction, “a transaction is not invalid” because it took place wholly or partly

200 [7.60]

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by means of one or more electronic communications: Electronic Transactions Act 1999 (Cth),
s 8; Electronic Transactions Act 2001 (ACT), s 7; Electronic Transactions Act 2000 (NSW), s 7;
Electronic Transactions (Northern Territory) Act, s 7; Electronic Transactions (Queensland)
Act 2001 (Qld), s 8; Electronic Communications Act 2000 (SA), s 7; Electronic Transactions Act
2000 (Tas), s 5; Electronic Transactions (Victoria) Act 2000 (Vic), s 7; Electronic Transactions
Act 2011 (WA), s 8. Regulations in South Australia provide that the relevant section does
not apply to a law relating to the disposition of an interest in land: Electronic Transactions
Regulations 2002 (SA), reg 4(1)(a). In Victoria, s 126 of the Instruments Act 1958 (at [7.45])
specifically provides that its requirements “may be met in accordance with the Electronic
Transactions (Victoria) Act 2000 (Vic)”. In other States and Territories, it seems that the relevant
ETA provision is intended to allow electronic communications to satisfy the statute of frauds
provisions. The choice of language is unfortunate, however, since it is well accepted that non-​
compliance with the statute of frauds provisions does not render a contract invalid, but simply
unenforceable (see [7.105] and Greig and Davis, The Law of Contract (1987), pp 715–​6). The
provisions of the ETAs may, however, be interpreted broadly in accordance with the object
of the legislation, which is “to provide a regulatory framework that”, inter alia, “facilitates
the use of electronic transactions”: Electronic Transactions Act 1999 (Cth), s 3; Electronic
Transactions Act 2001 (ACT), s 3; Electronic Transactions Act 2000 (NSW), s 3; Electronic
Transactions (Northern Territory) Act, s 3; Electronic Transactions (Queensland) Act 2001,
s 3; Electronic Communications Act 2000 (SA), s 3; Electronic Transactions (Victoria) Act
2000, s 4; Electronic Transactions Act 2011 (WA), s 3.

Has the document been signed?

[7.85] In order to satisfy the statute of frauds provisions, a document must not only be “in
writing” but must also be “signed by the party to be charged”. The ETAs provide that, where a
law requires a person’s signature, that requirement is taken to have been met if an appropriately
reliable method has been used to indicate the person’s approval and the person consents to
the requirement being met by that method: Electronic Transactions Act 1999 (Cth), s 10;
Electronic Transactions Act 2001 (ACT), s 9; Electronic Transactions Act 2000 (NSW), s 9;
Electronic Transactions (Northern Territory) Act, s 9; Electronic Transactions (Queensland)
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Act 2001, s 14; Electronic Communications Act 2000 (SA), s 9; Electronic Transactions Act
2000 (Tas), s 7; Electronic Transactions (Victoria) Act 2000, s 9; Electronic Transactions
Act 2011 (WA), s 10. Given the generous approach the courts have taken to meeting the
“signature” requirement in the statute of frauds provisions, it may not be necessary to resort
to the provisions of the ETAs relating to signature.

Signature
[7.90] Each of the statute of frauds provisions requires that the written contract or
memorandum be signed by the party to be charged or by that person’s authorised agent
(who, in Victoria, must be authorised in writing: Instruments Act 1958 (Vic) s 126). The
notion of signature in this context has been liberally interpreted by the courts. The printing
or typing of a person’s name may be taken as a signature, provided the document has been
“authenticated” by the party in question. That is, provided the party to be charged has
recognised the writing as the final record of the contract. This is known as the “authenticated
signature fiction”.

[7.90] 201

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Pirie v Saunders
[7.95] Pirie v Saunders (1961) 104 CLR 149 (High Court of Australia) –​On Appeal from the Supreme
Court of New South Wales.
[FACTS: The respondent sought damages from the appellants for breach of an alleged agreement
to grant a lease of certain shop premises to the respondent. The appellants argued that any contract
that might have resulted from the discussions between the parties was unenforceable under s 54A
of the Conveyancing Act 1919 (NSW). The respondent argued that handwritten notes made by the
appellants’ solicitor of instructions to prepare a lease constituted a sufficient memorandum or note of
the agreement for the purposes of s 54A. The Full Court of the Supreme Court of New South Wales
(by majority) held that the solicitor’s notes were capable of being regarded as a sufficient note or
memorandum.]
THE COURT (DIXON CJ, FULLAGAR, KITTO, TAYLOR AND MENZIES JJ): [152] It is quite clear from
the evidence in the case that both the appellants and the respondent contemplated the preparation of
a formal memorandum of lease and it is, at the very least, doubtful whether the testimony of the latter
is capable of supporting the conclusion that an oral contract was made. Particularly is this so when it
is seen that a draft lease was prepared and that in subsequent discussions by correspondence various
amendments were proposed and accepted. But at the trial and before the Full Court the appellants
appear to have been content to rest the determination of this issue upon the question whether an
agreement for a fixed term to commence “from the completion of the building” did or did not specify
the commencing date of the term with sufficient certainty. This bare submission was rejected and, we
think rightly rejected, by the Full Court. In these circumstances we do not think it would be proper
for us at this stage to enter upon a full examination of the evidence for the purpose of considering
whether in fact the oral discussions between the parties are capable of being regarded as sufficient to
justify the conclusion that they entered into a binding contract for the granting of a lease.
The other question in the case, that is whether a sufficient note or memorandum had been proved,
was answered by a majority of the Full Court in favour of the respondent. They were of the opinion
that the fact that one of the appellants, acting both for himself and for the other appellant, gave
certain instructions to their solicitor and “stood by” whilst the instructions were written [153] down
by the solicitor “afforded evidence that he was impliedly recognizing the writing as an authentic
record of the prior oral bargain with the plaintiff which the jury found to have been made, in which
case the defendants’ names in the document could be regarded as ‘signatures’ within the meaning
of the statute”.
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It will be necessary to refer to the solicitor’s notes with greater particularity but before doing so
it should be mentioned that neither before the Full Court nor before us was reliance placed by the
respondent upon any other document. Originally at the trial he had attempted to rely upon a form of
lease sent to his solicitor under cover of a letter from the appellants’ solicitor in July 1954. It became
clear that, as constituting a note or memorandum of the contract sued upon, these documents were,
for obvious reasons, defective and when, in the defendants’ case, the solicitor’s note of his instructions
became, for no very apparent reason, evidence in the case it was readily seized upon to support the
respondent on this issue. From that time onwards reliance has been placed on this document alone
and in the circumstances it is necessary that we should examine it and see how it came into existence.
According to the evidence the appellant Cripps, acting for himself and for the first named
appellant, called to see their solicitor, Mr Hargraves, in order to give him instructions to prepare a
draft lease for submission to the respondent’s solicitor. We are not given the details by oral evidence
of what was then said but after having testified that he had received his first instructions from Cripps,
Mr Hargraves was asked whether he had made certain notes. Upon answering in the affirmative his
notes were produced and tendered and admitted in evidence. The exhibit is in the following form:

William Thompson Pirie 489 King Georges Rd, Ross Anthony Cripps B Hills. Prop: part of Lot
B Princes Highway, Sylvania Heights. Tenant: Wilfred Saunders 27 Crystal Street, Sylvania
Heights. Solr: TGW Lees, 113 Pitt Street. Terms: 5 years. 2 years option. Rental: £5 10 0

202 [7.95]

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Pirie v Saunders cont.

per week Commencement –​on completion of property. Premium: £400 (wants cash).
Use: Bakery shop –​sells cakes and pastry. Fixtures: Right to remove provided no damage.
No right to transfer without consent. Special Conditions –​Check as to Board of Health and
septic tank. [154]

Thereafter Mr Hargraves prepared a draft lease, there were discussions by correspondence between
the solicitors concerning the introduction of additional terms and finally a formal memorandum of
lease was engrossed. But since the premises were not then completed this instrument did not purport
to fix the commencing date of the term. Presumably this was left to be inserted after the premises had
been completed but the instrument was prepared so that everything would be in readiness when it
became possible to specify a commencing date.
In these circumstances the Full Court, by majority, took the view that the solicitor’s notes of
his instructions were capable of being regarded as a sufficient note or memorandum of an earlier
concluded agreement. This view was based upon the so-​called “authenticated signature fiction” by
which the majority meant “that if the name of the party to be charged (not being a signature in the
ordinary sense of the word) is placed on the document said to constitute the written memorandum
of the contract, it is to be treated as a signature for the purposes of the statute if such party expressly
or impliedly indicates that he recognizes the writing as being an authenticated expression of the
contract”. But since they considered that the jury should have been asked to determine as a question
of fact whether what took place when Cripps gave instructions to Hargraves “amounted to an
authentication” of the appellants’ “signatures” they directed that there should be a new trial. Possibly
their Honours intended to limit the new trial to this issue but the formal order is in general terms.
With respect to those members of the Full Court who thought otherwise we are of the opinion that
their Honours’ decision pushes too far the principle applied in Leeman v Stocks [1951] Ch 941 and the
earlier cases referred to in Neill v Hewens (1953) 89 CLR 1. The principle applied in those cases can,
we think, have no application to any document which is not in some way or other recognizable as a
note or memorandum of a concluded agreement. We do not mean by this that it is necessary that the
written note must always appear to have been made after the making of the contract for it is clear that
a written proposal or offer may by its subsequent acceptance become by the conduct of the parties
recognizable as a sufficient note or memorandum of the resulting contract (Warner v Willington (1856)
3 Drewry 523; 61 ER 1002; Smith v Neale (1857) 2 CB (NS) 67; 140 ER 337 and Reuss v Picksley (1866)
LR 1 Ex 342). But this is not such a case. [155]
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[7.100] Here there is an allegation of a prior concluded contract and the solicitor’s notes are said
to constitute a note or memorandum of this contract. But they purport to be and are nothing more
or less than a brief notation of his instructions for the preparation of a draft lease for submission to
the respondent’s solicitor. Neither the existence of the document nor its contents are indicative of
the existence of any binding contract. Perhaps, in other words, it may be said that the enumerated
particulars do not appear as a note or memorandum of a subsisting contract as distinct from bare
instructions for the preparation of a formal lease. Both the document and its contents are quite
consistent with the hypothesis that the parties had not made any prior binding contract and that their
rights and obligations were not to be effected until the execution of a memorandum of lease in the
form which, after discussion, it should finally take. That being so it in no way recognizes the existence
of any binding contract and cannot therefore be regarded as a note or memorandum of any such
contract (cf Thirkell v Cambi [1919] 2 KB 590).
In these circumstances it is not of much consequence to enter upon a discussion concerning the
view expressed by the majority of the Full Court that the appellant Cripps “stood by” whilst Hargraves
noted his instructions and that these circumstances “afforded evidence that he was impliedly
recognizing the writing as an authentic record of the prior oral bargain with the plaintiff”. But since
there is nothing in the evidence to suggest that Cripps had any knowledge of what was written down,
it seems clear that no inference adverse to the appellants can be based on the so-​called “standing
by”. Moreover even if Cripps can be said to have “stood by” there is no room for the inference that

[7.100] 203

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Pirie v Saunders cont.

he impliedly recognized the writing as an authentic record of any prior oral bargain. Indeed, both
the character and contents of the document and the circumstances in which it was composed tell
conclusively against any such inference. We should add also that the nature of the document was such
as to render any inquiry concerning the solicitor’s authority to make it quite inappropriate.
Finally, even if these objections are not properly founded, it will be seen upon examination that there
are several reasons why the document could not be regarded as a sufficient note or memorandum. In
the first place it does not specify the property which is to be leased beyond describing it as “part of Lot
B, Princes Highway, Sylvania Heights”. This alone is, we should think, a fatal objection. Secondly, it is
clear that the document does not [156] contain all the terms of the proposed lease for it contemplates
the formulation of special conditions after ascertainment of the requirements of the Board of Health.
Again, the agreement for breach of which the respondent sought damages was an agreement in the
terms alleged in the declaration and the lease the subject of the alleged agreement was to contain,
in addition to the matters specified in the declaration, “all the usual and proper covenants”. But it
is reasonably clear from the immediately following allegation in the declaration that “the said lease
was prepared by the defendants” solicitor and all covenants were agreed to by the plaintiff and the
defendants’, and from succeeding allegations, that the substance of the respondent’s case was that
there had been a breach of an agreement to grant a lease in the form which the final engrossment took.
That being so it is clear that, even if the solicitor’s notes can be regarded as a note or memorandum
of an agreement between the parties, it is quite insufficient to support the agreement sued upon.
For these reasons the appeal should be allowed and the order of the Full Court set aside.
Appeal allowed.



THE CONSEQUENCES OF NON-​COMPLIANCE

Unenforceability
[7.105] A failure to comply with the provisions of the Statute of Frauds makes a contract
unenforceable, rather than void. In Leroux v Brown (1852) 12 CB 801; 138 ER 1119, Jervis CJ
said: “The statute … does not say, that, unless those requisites are complied with, the contract
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shall be void, but merely that no action shall be brought upon it.”
This means that it may in some circumstances be possible to rely on an unenforceable
verbal contract as a defence (see, eg, Thomas v Brown (1876) 1 QBD 714), although this
remains a matter of controversy (see Perpetual Executors & Trustees Association of Australia
Ltd v Russell (1931) 45 CLR 146 and Head v Kelk (1963) 63 SR (NSW) 340 and Take
Harvest Ltd v Liu [1993] AC 552).

Part performance
[7.110] Soon after the Statute of Frauds was passed, it became apparent that it had the
potential to enable the perpetration of more fraudulent acts than it avoided. Equity intervened
and developed what has come to be known as the doctrine of part performance. According
to this doctrine, a person who has partly performed a contract should be able to obtain
equitable relief even though the contract itself failed to comply with the statute. Because part
performance is an equitable doctrine, only equitable relief can be granted to give effect to
it. Part performance will not provide a basis for an action for damages at common law (JC

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Williamson Ltd v Lukey (1931) 45 CLR 282 at [30.70]). This means that the doctrine of part
performance can only be utilised in circumstances where specific performance is available (see
Chapter 30). In circumstances where specific performance is available, a court may award
damages in lieu of specific performance under legislation in force in all jurisdictions re-​enacting
the provisions of Lord Cairns’ Act (see [30.60]). On the question whether injunctive relief may
be available to a person seeking to enforce a contract on the basis of part performance, see
JC Williamson v Lukey and Mulholland at [30.70]. One of the most difficult problems in
the application of the doctrine of part performance has been in determining whether there
is a sufficient nexus between the acts of part performance and the alleged contract. A strict
test (requiring that the acts be unequivocally referable to a contract of the kind alleged) was
laid down in Maddison v Alderson (1883) 8 App Cas 467, but a more liberal test (requiring
only that the acts point to the existence of a contract of some kind between the parties and
are consistent with the contract alleged) was approved by the House of Lords in Steadman v
Steadman [1974] 3 WLR 56.

Pipikos v Trayans
[7.112] Pipikos v Trayans [2018] HCA 39 (High Court of Australia) –​On Appeal from the Supreme
Court of South Australia.
[FACTS: Leon Pipikos (the appellant) and his wife Sophie made certain real estate investments
together with Leon’s brother George and George’s then wife Velinka Trayans (the respondent). The
two couples purchased an investment property together at Penfield Road in July 2004. The Penfield
Road purchase was made by all four (as tenants in common) and was funded by a loan made to
all four, together with approximately $75,000 paid by Leon and Sophie. Leon claimed that, in July
2004, in order to fund George and Velinka’s participation in the Penfield Road purchase, George
and Velinka orally agreed to sell Leon a half-​interest in a property George and Velinka owned at
Clark Road. The purchase price was $45,000, to be paid partly by way of funding Velinka and
George’s contribution to the Penfield Road purchase (ie, their share of the $75,000) and partly
by way of a cash payment of approximately $8,000 Leon claimed to have made to them. Velinka
later became the sole proprietor of the Clark Road property after she and George divorced. Leon
sought a declaration that he was entitled to a half-​interest in the Clark Road property. The trial
judge found that no valid contract had been made, but even if it had, the payments made by Leon
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were insufficient to invoke the doctrine of part performance. The payments made by Leon were not
unequivocally referable to a contract of the kind asserted but were equally consistent with a loan or
an unequal contribution to the real estate investment partnership. On appeal, the Full Court found
that a contract had been established but agreed that the requirements of part performance had not
been satisfied.]
KIEFEL CJ, BELL, GAGELER AND KEANE JJ: [1]‌South Australia, in common with the other States
and the Territories, requires that contracts for the sale of land meet certain formal requirements if
they are to be enforceable (Conveyancing Act 1919 (NSW), s 54A; Property Law Act 1974 (Q), s 59;
Conveyancing and Law of Property Act 1884 (Tas), s 36; Instruments Act 1958 (Vic), s 126; Law Reform
(Statute of Frauds) Act 1962 (WA), s 2; Civil Law (Property) Act 2006 (ACT), s 204; Law of Property Act
(NT), s 62). Section 26(1) of the Law of Property Act 1936 (SA) (“the Act”), the modern iteration of s 4
of the Statute of Frauds 1677 (29 Car II c 3), relevantly provides that:
No action shall be brought upon any contract for the sale or other disposition of land or
of any interest in land, unless an agreement upon which such action is brought, or some
memorandum or note thereof, is in writing, and signed by the party to be charged.
[2]‌Section 26(2) of the Act provides relevantly that the section does not “affect the law relating to
part performance”.

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[3]‌ In Cooney v Burns (1922) 30 CLR 216 at 233 (emphasis in original, see also at 226 per Knox
CJ), Isaacs J summarised the law relating to part performance as being that a “bargain in fact
made, though devoid of an enforceability either at law or in equity, has been so acted upon by
partly performing it that for the defendant to recede from it at that stage would be a fraud on the
plaintiff.”
[4]‌ In Maddison v Alderson (1883) 8 App Cas 467 at 479 (see also at 491 per Lord FitzGerald), the
Earl of Selborne LC said that “the acts relied upon as part performance must be unequivocally, and in
their own nature, referable to some such agreement as that alleged”. The appellant submitted that it
is unduly demanding of a party seeking specific performance of a parol contract for the sale of land
to require that the acts of part performance be “unequivocally, and in their own nature, referable”
to a contract of the kind asserted by the party seeking specific performance; and that in this case the
courts below erred in adhering to this requirement.
[5]‌The appellant urged the adoption of a more relaxed approach, akin to the approach taken in
the context of equitable estoppel, said to have been adumbrated by Lord Cranworth LC in Caton v
Caton (1866) LR 1 Ch App 137 at 148. On the appellant’s argument, the question a court must ask
is whether a contracting party has knowingly been induced or allowed by the counterparty to alter
his or her position on the faith of the contract. The resolution of this argument is the principal issue
in this Court.
[6]‌The appellant’s argument that the requirement of unequivocal referability stated by
Lord Selborne in Maddison v Alderson should be relaxed must be rejected for the reasons which follow.
Accordingly, the appeal must be dismissed.
…
The Australian authorities
[37] At the forefront of the appellant’s argument in this Court was the contention that in Regent
v Millett (1976) 133 CLR 679 Gibbs J, with whom Stephen, Mason, Jacobs and Murphy JJ agreed,
expressed a preference for a more liberal approach to the availability of part performance as a basis
for the enforcement of a parol contract for the sale of land than that stated by Lord Selborne in
Maddison v Alderson. This contention was based on the circumstance that Gibbs J said (at 682) that
“[t]‌he principle upon which the doctrine of part performance rests was stated by Lord Cranworth,
Lord Chancellor in Caton v Caton (1866) LR 1 Ch App 137 in words which appear to have a direct
application to the present case”. The passage then cited by Gibbs J was in the following terms ((1866)
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LR 1 Ch App 137 at 148):

[W]‌hen one of two contracting parties has been induced, or allowed by the other, to alter
his position on the faith of the contract, as for instance by taking possession of land, and
expending money in building or other like acts, there it would be a fraud in the other party
to set up the legal invalidity of the contract on the faith of which he induced, or allowed, the
person contracting with him to act, and expend his money.
[38] It is apparent that Gibbs J (at 682) regarded this statement as having a direct application to the
case before him because it supported the proposition that:
the entry into possession alone, or the taking of possession coupled with the expenditure of
money by one party on the improvement of property, with the cognizance of the other party
to the contract, may amount to part performance.
[39] On this basis, Gibbs J held (at 683) that, in the case before him, “the giving and taking of
possession by itself was sufficient part performance of the contract”.
[40] Nothing in the use made of Caton v Caton by Gibbs J in Regent v Millett gives any support for
the relaxation of the approach of Lord Selborne in Maddison v Alderson. On the contrary, Gibbs J went
on to say (at 683):

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the test suggested by the Earl of Selborne LC in [Maddison v Alderson (1883) 8 App Cas
467 at 479], that the acts relied upon as part performance ‘must be unequivocally, and in
their own nature, referable to some such agreement as that alleged’, has been consistently
accepted as a correct statement of the law. It is enough that the acts are unequivocally and in
their own nature referable to some contract of the general nature of that alleged (see McBride
v Sandland (1918) 25 CLR 69 at 78).
[41] It is simply not possible to understand these observations as expressing reservation or doubt
about the correctness of Lord Selborne’s statement.
[42] It is also noteworthy that Gibbs J went on to say (at 683-684) that the taking of possession
was unequivocally referable to the contract even though the contract permitted, but did not require,
the plaintiffs to take possession of the land. In other words, his Honour’s judgment rejected the
suggestion that only an act to the detriment of a plaintiff on the faith of the contract would suffice as
an act of part performance. As will be seen, the decision in Regent v Millett differs, in this respect, from
the approach of Lord Reid in Steadman v Steadman [1976] AC 536 at 540.
[43] Earlier decisions of the High Court also support the view that Lord Selborne’s requirement of
unequivocal referability is to be taken as a correct statement of the law. In McBride v Sandland (1918)
25 CLR 69 at 77-79, 98-99, Isaacs, Rich and Powers JJ accepted Lord Selborne’s statement of the
law; and in Cooney v Burns (1922) 30 CLR 216 at 223, 229-231, 239, 243, 243-244, Knox CJ, Isaacs,
Higgins, Gavan Duffy and Starke JJ did likewise.
[44] It is true that, in McBride v Sandland (1918) 25 CLR 69 at 79, Isaacs and Rich JJ accepted that
an act of part performance must be done “by the party relying on it on the faith of the agreement,
and … the other party must have permitted it to be done on that footing” if the moral turpitude that
is the “ground of jurisdiction” is to be established. That view may not accord with what Lord Selborne
actually said or with the decision in Regent v Millett. But otherwise there can be no doubt that in
Australia Lord Selborne’s statement of the law in Maddison v Alderson is unshaken by the course of
authority in this Court.
[45] As to the appellant’s contention that Lord Selborne’s unequivocal referability requirement has
not been the reason for the decision of any case in this Court, it would be difficult, to say the least, to
reconcile a decision in the appellant’s favour in this case with this Court’s decision in Cooney v Burns. In
that case, the defendant agreed to sell to the plaintiff the lease of a hotel of which the defendant was
the lessee. After the contract was made, the lease of the hotel was handed to the plaintiff’s solicitors
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for the purpose of having an assignment of the lease prepared together with notices of an application
for the transfer of the associated liquor licence. The plaintiff’s solicitors proceeded to prepare an
assignment of the lease and the notices of application. An inventory of the furniture included in the
sale was also taken. The plaintiff incurred expense in relation to these steps. These acts on the part
of the plaintiff were held to be insufficient as acts of part performance in that they did not alter the
relative positions of the parties in relation to the land the subject of the contract in terms of the title
to, or possession of, or use of that land: (1922) 30 CLR 216 at 235, 241-242, 243, 244-245). The same
may be said of the acts of part performance relied upon in this case by the appellant.
A rule of evidence or a principle of substance?
[46] It was common ground between the parties in the present case that the rationale of the doctrine
of part performance is not concerned with the proof of the contract but with the enforcement of
equities arising from the partial performance of the contract. On the appellant’s behalf, it was argued
that the requirement of unequivocal referability is a vestige of the tenacious heresy that the doctrine
of part performance is concerned with the proof of the parol contract by a process of inference from
the acts of part performance. It was said that Lord Selborne had erred by applying rules of Chancery
procedure that had, by the time of Maddison v Alderson, been repealed, and that this had led to courts
treating the requirement of unequivocal referability as a substantive rule when, in truth, it was an
erroneously invoked rule of evidence.

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[47] It is true that some statements in the cases are far from clear as to the rationale of the doctrine
of part performance. In some of the cases, the basal principle is stated in terms of a concern to
enforce the equities that have arisen by reason of the performance of obligations under the parol
contract in order to prevent the equitable fraud that would occur if the defendant were allowed to
resile from a partly completed transaction (Caton v Caton (1866) LR 1 Ch App 137 at 148; Maddison
v Alderson (1883) 8 App Cas 467 at 475-476, 489; Steadman v Steadman [1976] AC 536 at 540,
542-543, 558, 568; Regent v Millett (1976) 133 CLR 679 at 682). On this view, as Pomeroy says, the
ground of equitable intervention is “a fraud inhering in the consequence of setting up the statute
as a defense” (Symons, Pomeroy’s Equity Jurisprudence, 5th ed (1941), vol 4, §1409. See also Story,
Commentaries on Equity Jurisprudence, as Administered in England and America, 13th ed (1886), vol 2,
§§754 and 758).
[48] In other cases, the principle has been stated in terms of a concern that evidence is necessary
to satisfy a peculiarly high standard of proof to establish the fact of the making of a parol contract
for the sale of land (Morphett v Jones (1818) 1 Swans 172 at 181; 36 ER 344 at 348; Maddison v
Alderson (1883) 8 App Cas 467 at 479, 485; Thomas v The Crown (1904) 2 CLR 127 at 138; Maiden v
Maiden (1909) 7 CLR 727 at 737-738; Chaproniere v Lambert [1917] 2 Ch 356 esp at 361; Kingswood
Estate Co Ltd v Anderson [1963] 2 QB 169 at 189. See also Actionstrength Ltd v International Glass
Engineering [Link] SpA [2003] 2 AC 541 at 549-550 [22]-[23]). In Corbin on Contracts, in relation to
the requirement that the acts of part performance be unequivocally referable to some such contract
as that alleged by the plaintiff, it is said that the “principal idea that is struggling for expression is
that the part performance must be clearly evidential of the existence of a contract” (Brown, Corbin on
Contracts, rev ed (1997), vol 4 at 521).
[49] The view that the court enforces the equities arising from partial performance, rather than
the rights conferred by the parol contract itself, while attended with a degree of subtlety, has the
powerful merit of being consistent with the Statute of Frauds. The view that part performance is
concerned with matters of proof of the parol contract cannot stand with the Statute of Frauds, the
evident purpose of which is to prevent the enforcement of a parol contract, however clear may be
the proof of its making.
[50] It is not correct to say that Lord Selborne’s statement of principle evinces the view that
part performance operates as acceptable evidence of the parol contract in question in place of the
writing required by the statute. When Lord Selborne spoke of acts “unequivocally … referable” to
“some such agreement” (Maddison v Alderson (1883) 8 App Cas 467 at 479), his Lordship was not
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speaking of the particular contract in question. The very circumstance that Lord Selborne spoke of
referability to “some such agreement” itself suggests that the requirement is not concerned with
proof of the particular contract in question, but with dealings between the parties which in their
nature establish that the parties are in the midst of an uncompleted contract for the sale or other
disposition of land. Given that part performance is relevant only in relation to contracts for the
sale or other disposition of land (cf Heydon, Leeming and Turner, Meagher, Gummow and Lehane’s
Equity: Doctrines and Remedies, 5th ed (2015) at 684), it is not difficult to appreciate that the acts
described by Lord Selborne are acts unequivocally and inherently referable to a transaction for
the sale or other disposition of the land. Lord Selborne was clear that unequivocal referability is
concerned with the proof of acts partially executing a transaction that remains uncompleted, and
that proof of the agreement that had been made was not required to show the equity to have the
transaction completed.
[51] It is significant in this respect that Lord Selborne expressly adopted the statement of Sir James
Wigram V-C in Dale v Hamilton (1846) 5 Hare 369 at 381; 67 ER 955 at 960 that it is in general of the
essence of an act of part performance:
that the Court shall, by reason of the act itself, without knowing whether there was an
agreement or not, find the parties unequivocally in a position different from that which,
according to their legal rights, they would be in if there were no contract. (emphasis added)

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[52] In a case where the parties are found, as a matter of fact, to be in that position, equity requires
that the transaction be completed notwithstanding the objection of the defendant that the contract
itself cannot be enforced by reason of non-​compliance with the Statute of Frauds. The requirement
for unequivocal referability is essential to Lord Selborne’s thesis that the court is not enforcing the
contract –​that would be contrary to the Statute of Frauds –​but the equities generated by its partial
performance. It is only where the acts of part performance are inherently and unequivocally referable
to such a contract that it cannot be objected that, in truth, and contrary to the legislation, it is the
parol contract that is being enforced.
…
[54] The equity to have the transaction completed arises where the acts that are proved are
consistent only with partial performance of a transaction of the same nature as that which the plaintiff
seeks to have completed by specific performance. At that point, regard may be had to the terms of
the oral contract in order to ascertain the appropriate orders by way of specific performance. So, in
Maddison v Alderson (1883) 8 App Cas 467 at 475-476, Lord Selborne stated that the terms of the
parol contract may be taken into account only when the equity to have the transaction carried to
completion has been established and it becomes necessary to establish the terms of the order to be
made. At that point (at 476):
“The matter has advanced beyond the stage of contract; and the equities which arise out
of the stage which it has reached cannot be administered unless the contract is regarded.”
[55] In McBride v Sandland (1918) 25 CLR 69 at 77-78, Isaacs and Rich JJ explained that the logical
order in which the issues in a case such as the present should be addressed is first to determine
whether the acts performed establish the equity and then, and only then, to refer to the terms of the
parol agreement in order to ascertain the terms in which the equity is to be enforced.
[56] Applying that reasoning to the present case, because the acts of part performance relied upon
by the appellant are consistent with some transaction other than a sale of the Clark Road property,
he was not able to show a partially completed sale of the Clark Road property that he was entitled in
equity to have fully executed by means of a decree of specific performance.
[57] It also follows from the above that the appellant’s contention that Lord Selborne erroneously
applied repealed rules of Chancery procedure is incorrect, and must be rejected. On the contrary,
his Lordship was expounding a rule of substance calculated to avoid Chancery acting in a manner
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repugnant to the Statute of Frauds.

Part performance and equitable estoppel
[58] It has been suggested (Heydon, Gummow and Austin, Cases and Materials on Equity and Trusts,
3rd ed (1989) at 1042) that “the modern and divergent rules of proprietary and equitable estoppel
… secret trusts … and part performance sprang from [the] common root” that a person may not rely
on his or her strict legal rights where to do so is against the conscience of equity. But the appellant’s
invitation to subsume part performance within the development of equitable estoppel fails to
appreciate that, while in some cases the doctrines may have an overlapping operation, they do not
cover the same ground. While it may well be that equity’s concern to prevent unconscientious conduct
is the common root of equitable estoppel and part performance, there are discernible differences in
the scope and operation of these doctrines as each has developed in Australia.
[59] The first such difference is that part performance may be invoked by a vendor of land to
enforce a parol contract (Turner v Bladin (1951) 82 CLR 463 at 473), whereas equitable estoppel is
available only against a vendor of land to vindicate the interests of a prospective purchaser (cf Dillwyn
v Llewelyn (1862) 4 De G F & J 517; 45 ER 1285; Ramsden v Dyson (1866) LR 1 HL 129).
[60] Next, equitable intervention by way of equitable estoppel to prevent a defendant resiling
from a promise that is not enforceable at law is justified, not by the existence of an unperformed or
partially performed promise, but by a concern that the plaintiff should not be left to suffer a detriment

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by the defendant’s so resiling (Giumelli v Giumelli (1999) 196 CLR 101 at 121-122 [35]; Sidhu v Van
Dyke (2014) 251 CLR 505 at 522-523 [58]). So, in Waltons Stores (Interstate) Ltd v Maher (1988) 164
CLR 387 at 406 Mason CJ and Wilson J noted that, as a general rule, a “failure to fulfil a promise does
not of itself amount to unconscionable conduct” and so “mere reliance on an executory promise to
do something, resulting in the promisee changing his position or suffering detriment, does not bring
promissory estoppel into play.” In the same case (at 418-​419), Brennan J explained:
The protection which equity extends is analogous to the protection given by estoppel in
pais to which Dixon J referred in Grundt v Great Boulder (1937) 59 CLR 641, ie, protection
against the detriment which would flow from a party’s change of position if the assumption
(or expectation) that led to it were deserted.
[61] Thirdly, the nature of the equity enforced by part performance differs from that enforced by
equitable estoppel. In some cases of equitable estoppel, the relief granted may require the taking
of active steps by the defendant to meet the expectations generated by the transaction (Dillwyn v
Llewelyn (1862) 4 De G F & J 517; 45 ER 1285; Ramsden v Dyson (1866) LR 1 HL 129; Sidhu v Van
Dyke (2014) 251 CLR 505 at 529 [82]), but in other cases the requirements of good conscience
may mean that such an order would not reflect the measure of relief required to protect the plaintiff
against the apprehended detriment (The Commonwealth v Verwayen (1990) 170 CLR 394 at 441;
Sidhu v Van Dyke (2014) 251 CLR 505 at 529 [83]). If the doctrine of part performance covered
the same ground as equitable or promissory estoppel, one might have expected that there would
need to be, in each case where part performance is invoked, an analysis of the extent to which a
defendant’s attempt to resile from completion of the transaction would result in detriment to the
plaintiff, and that the relief granted would be moulded accordingly to prevent that detriment (ff
Crabb v Arun District Council [1976] Ch 179 at 198). But that has not been the case. Indeed, in
the case of part performance, as is apparent from this Court’s decision in Regent v Millett, there is
not even an insistence that there be detrimental reliance on the part of the plaintiff to establish
an equity to relief. A defendant’s act in putting a plaintiff into possession might not of itself be a
detriment to the plaintiff, but there can be no doubt that it is a sufficient act of part performance
(Regent v Millett (1976) 133 CLR 679 at 682). Where part performance is established the plaintiff
will be entitled to a decree of specific performance without needing to establish that a lesser form
of relief would be inadequate. In this respect, the operation of part performance may be contrasted
with equitable estoppel, where, as Mason CJ and Wilson J noted in Waltons Stores (Interstate) Ltd v
Maher (1988) 164 CLR 387 at 405, the plaintiff’s equity may be enforced by the grant of relief falling
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short of an order for the satisfaction of the plaintiff’s expectation interest (see also Sidhu v Van Dyke
(2014) 251 CLR 505 at 528-530 [79]-[86]).
[62] In Maddison v Alderson (1883) 8 App Cas 467 at 475, Lord Selborne illustrated his thesis that
the defendant “is really ‘charged’ upon the equities resulting from the acts done in execution of the
contract” by the example of:
a parol contract to sell land, completely performed on both sides, as to everything except
conveyance; the whole purchase-money paid; the purchaser put into possession; expenditure
by him (say in costly buildings) upon the property; leases granted by him to tenants. The
contract is not a nullity … All the acts done must be referred to the actual contract, which is
the measure and test of their legal and equitable character and consequences.
[63] His Lordship went on to say (at 476):
The choice is between undoing what has been done (which is not always possible, or, if
possible, just) and completing what has been left undone. The line may not always be
capable of being so clearly drawn as in the case which I have supposed; but it is not arbitrary
or unreasonable to hold that when the statute says that no action is to be brought to charge
any person upon a contract concerning land, it has in view the simple case in which he is

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charged upon the contract only, and not that in which there are equities resulting from res
gestae subsequent to and arising out of the contract.
[64] In the example offered by Lord Selborne it is readily apparent, having regard to the acts
performed on the strength of the contract, that a court of equity would regard specific performance
of the contract –​which, ex hypothesi, would involve only an order for the transfer of the legal
title –​as the only remedy sufficient to do justice. A contract or other arrangement which remains
largely unperformed on both sides may not always have the same claim on the conscience of
equity in terms of the remedies provided by the court as a contract which has been performed to
the extent of that hypothesised by Lord Selborne (cf In re Cuming (1869) LR 5 Ch App 72; Chang
v Registrar of Titles (1976) 137 CLR 177 at 184-185, 189-190). And so it can be seen that it is
something peculiar to part performance that the equity of the plaintiff that arises in reliance upon
the partial performance of the contract has been regarded as sufficiently strong, without more, save
a readiness, willingness and ability to do equity (Mehmet v Benson (1965) 113 CLR 295 at 307-308,
314-315; cf Langman v Handover (1929) 43 CLR 334 at 345, 356; Mayfair Trading Co Pty Ltd v Dreyer
(1958) 101 CLR 428 at 452-453), to support an order for specific performance in order to vindicate
the equity of the plaintiff that arises from the part performance of the contract. In J C Williamson
Ltd v Lukey and Mulholland (1931) 45 CLR 282 at 300, Dixon J, with whom Gavan Duffy CJ agreed,
explained why this is so:
The acts of part performance must be such as to be consistent only with the existence of a
contract between the parties, and to have been done in actual performance of that which in
fact existed. But in such a case the equity which so arises is to have the entire contract carried
into execution by both sides. Because the acts done upon the faith of the contract could not
have taken place if it had not been made, and the contract is of a kind which it is considered
equitable to enforce in specie, a party who has so acted in partial execution of the contract
obtains an equity to its complete performance.
[65] Lord Selborne’s requirement that the acts of part performance relied upon be unequivocally
referable to a contract of the kind asserted by the plaintiff is best understood as being necessary to
give rise to this peculiarly strong equity. His Lordship said (Maddison v Alderson (1883) 8 App Cas 467
at 478):
the rule … requires some evidentia rei to connect the alleged part performance with the
alleged agreement. There is not otherwise enough in the situation in which the parties are
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found to raise questions which may not be solved without recourse to equity. It is not enough
that an act done should be a condition of, or good consideration for, a contract, unless it is,
as between the parties, such a part execution as to change their relative positions as to the
subject-matter of the contract.

…
The result in the present case
[77] It was argued in the written submissions made on the appellant’s behalf that even if the
unequivocal referability requirement were applied he should succeed on the appeal; but in the course
of oral argument, it was conceded that, if Lord Selborne’s approach were applied to the circumstances
of this case, the acts on which the appellant relied at trial and before the Full Court would not suffice
as acts of part performance. That concession was rightly made.
[78] In Cooney v Burns (1922) 30 CLR 216 at 244, Starke J fixed upon the statement of Lord Selborne
(Maddison v Alderson (1883) 8 App Cas 467 at 478) that an act is not a sufficient act of part performance
“unless it is, as between the parties, such a part execution as to change their relative positions as to
the subject-matter of the contract.” Starke J went on to conclude ((1922) 30 CLR 216 at 244; see also
at 236-238 per Isaacs J, 240-241 per Higgins J) that the act relied on in the case before him by way

[7.112] 211

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 Part II: Formation

Pipikos v Trayans cont.

of part performance was not sufficient to support an order for specific performance because it did
not “change the relative positions of the parties as to the subject matter of the contract, namely, the
land”; in particular, the acts in question did not “alter the title in the land … affect the possession or
the right to possession of the land, [or] … affect the use of the land or touch or concern the land in
any way whatever.”
[79] Similar observations may be made in the present case. Here, neither party performed any
act that was unequivocally referable to the Clark Road property. There was no giving or taking of
possession of that land. There were no other acts indicative of a change in the respective positions of
the parties in relation to the land. The Full Court was therefore correct to conclude that the acts on
which the appellant relied were not sufficient to engage the doctrine of part performance.
Conclusion and orders
[80] Considerations of authority and principle combine to require that the appellant’s contention be
rejected.
[NETTLE and GORDON JJ and EDELMAN J delivered separate judgments exploring the history
and nature of the part performance doctrine. Their Honours agreed that the unequivocal referability
requirement should be maintained and that the appeal should be dismissed.]
Appeal dismissed.



[7.115] Note
The doctrine of part performance has been abolished in the United Kingdom by the Law of
Property (Miscellaneous Provisions) Act 1989 (c 34), s 2(8). Section 2(1) of that Act provides
that: “A contract for the sale or other disposition of an interest in land can only be made
in writing and only by incorporating all the terms which the parties have expressly agreed
in one document or, where contracts are exchanged, in each.” See Yaxley v Gotts [2000]
Ch 162, 171–​2.
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Constructive trust, estoppel, misleading conduct and restitution

[7.125] One result of the difficulties facing a plaintiff forced to rely on the doctrine of part
performance has been an increased focus on alternative causes of action, such as constructive
trust, estoppel, misleading or deceptive conduct and restitution.

1. Constructive trust was successfully relied upon as an alternative to part performance in

Ogilvie v Ryan [1976] 2 NSWLR 504.
2. Reliance on the doctrine of estoppel is illustrated by the decision of the High Court
in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at [9.35]. See further
Riches v Hogben (1986) 1 Qd R 315; Colin v Holden [1989] VR 510; Powercell Pty Ltd
v Cuzeno [2004] NSWCA 51.
3. On the possibility of relying on misleading or deceptive conduct, see Futuretronics
International Pty Ltd v Gadzhis [1992] 2 VR 217 at [33.155].

212 [7.115]

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 Formalities Chapter 7

4. If a plaintiff pays money or provides goods or services under a verbal contract which
is rendered unenforceable by legislation, an action in restitution may be available; see
Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 at [10.20]. As indicated in Pavey
& Matthews Pty Ltd v Paul, the wording of a statutory provision may be sufficiently
wide to exclude any claim by a contracting party who fails to comply with the relevant
statutory formalities. Compare Stevastopoulos v Spanos [1991] 2 VR 194; Mostia
Constructions Pty Ltd v Cox [1994] 2 Qd R 55; Sutton v Zullo Enterprises Pty Ltd
[1998] QCA 417; [2000] 2 Qd R 196.
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[7.125] 213

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[Link]
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