ON APPEAL FROM THE SUPREME COURT OF Contract-Specific performance-Part performunce---Contract signed by agent-
Authority of agent not in writing--Application of doctrine of part performance- MELBOURNE,
What constitutes part performance-Sale of lease of hotel-Lease handed to pur. Feb. 24, 27,
chaser's solicitor-Preparation of transfer-Instruments Act 1915 (Vict.) (No. 2672), secs. 228, 229-Statute of Frauds (29 Car. II. c. 3), sec. 4. SYDNEY,
Sec. 228 of the Instruments Act 1915 (Vict.) re-enacts sec. 4 of the Statute of April 24.
Frauds. Sec. 229 provides that "Notwithstanding anything in this Act contained no action shall be brought upon any contract or sale of lands tene ments or hereditaments or any interest in or concerning them if the agreement or the memorandum or note thereof on which such action is brought is
signed by any person other than the party to be charged therewith unless such person SO signing be thereunto lawfully authorized in writing signed by the party to be so charged."
Held, by Knox C.J., Isaacs, Higgins and Starke JJ., that acts of part per- formance which would be sufficient to entitle a plaintiff to succeed in an action brought on a contract which does not comply with sec. 228 are also sufficient to entitle him to succeed in an action brought upon a written contract signed by an agent not authorized in writing signed by the party to be charged as required by sec. 229.
By a contract in writing signed by the plaintiff and an agent for the defend- ant, the defendant agreed to sell to the plaintiff the ingoing, furniture and exist- ing lease of a hotel of which the defendant was lessee. The agent was not authorized in writing signed by the defendant. After the contract was made the lease of the hotel was handed to the plaintiff's solicitors, under instructions from the defendant, for the purpose of having prepared an assignment of the lease and the notices of an application for a transfer of the licence, and the plaintiff's solicitors prepared an assignment of the lease and the notices of an application for a transfer of the lease. An inventory of the furniture included in the contract was also taken. In an action by the plaintiff for specific performance of the contract,
Held, by Isaacs, Higgins, Gavan Duffy and Starke JJ. (Knox C.J. dissenting), that there had not been part performance of the contract sufficient to take the
Maddison v. Alderson, (1883) 8 App. Cas., 467, applied. Child v. Comber, (1723) 3 Swans., 423 (n.), distinguished. Decision of the Supreme Court of Victoria (Mann J.) Burns v. Cooney, (1921) V.L.R., 541: 43 A.L.T., 79, reversed.
APPEAL from the Supreme Court of Victoria.
An action was brought in the Supreme Court by John Thomas Burns against Phillip Cooney in which the plaintiff alleged that the defendant was at all material times the licensee and lessee of the Limerick Castle Hotel in Bendigo, that by a contract in writing dated 21st January…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Cooney v Burns [1922] HCA 8
Case
[1922] HCA 8
Decision Date
CaseChat Overview and Summary
The case of *Cooney v. Burns* involved an appeal to the High Court of Australia from a decision of the Supreme Court of Victoria. The dispute concerned a written contract for the sale of a hotel, including its ingoing, furniture, and existing lease. The contract was signed by the plaintiff, Burns, and by an agent, Kelly, purportedly on behalf of the defendant, Cooney. Cooney denied the contract, asserting that Kelly lacked written authority to act as his agent and that the contract did not comply with the requirements of sections 228 and 229 of the *Instruments Act 1915* (Vict.).
The central legal issues before the High Court were twofold. Firstly, whether the doctrine of part performance, which can validate a contract not complying with the Statute of Frauds, applied to contracts signed by an agent lacking written authority under section 229 of the *Instruments Act 1915*. Secondly, the Court had to determine whether the specific acts relied upon by the plaintiff constituted sufficient part performance to take the contract out of the operation of the statute. These acts included the handing over of the hotel lease to the plaintiff's solicitors for the preparation of an assignment and notices for a licence transfer, and the subsequent preparation of these documents by the solicitors.
A majority of the High Court, comprising Isaacs, Higgins, Gavan Duffy, and Starke JJ., held that the acts relied upon did not amount to sufficient part performance. They applied the principles established in cases like *Maddison v. Alderson*, emphasizing that acts of part performance must be unequivocally referable to the alleged agreement and must render it fraudulent for the other party to rely on the absence of a written contract. The Court distinguished *Child v. Comber*, finding that the handing over of the lease and the preparation of the assignment were preparatory acts rather than acts unequivocally demonstrating the existence of the contract itself. Knox C.J. dissented, finding that the handing over of the lease and the plaintiff's subsequent expenditure in preparing the assignment constituted sufficient part performance.
Consequently, the High Court reversed the decision of the Supreme Court of Victoria. The majority found that the acts undertaken by the plaintiff were not of a nature that would make it fraudulent for the defendant to rely on the Statute of Frauds, and therefore, specific performance could not be granted.