Cooney v Burns

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.