Fitzsimmons v Trotter

In *Fitzsimmons v Trotter* [1993] NSWCA 97, the New South Wales Court of Appeal considered a dispute between the appellant, Fitzsimmons, and the respondent, Trotter. The case concerned the enforceability of an alleged oral agreement for the sale of a business.

The primary legal issue before the Court of Appeal was whether the oral agreement, if it existed, was rendered unenforceable by the provisions of the *Sale of Goods Act 1923* (NSW) (the Act), specifically section 9, which requires contracts for the sale of goods of the value of $20 or more to be evidenced in writing. The Court also had to determine whether there had been sufficient part performance to take the agreement out of the operation of section 9 of the Act.

The Court of Appeal, applying established principles of contract law and the doctrine of part performance, found that the oral agreement was indeed for the sale of goods exceeding the statutory threshold and was therefore prima facie unenforceable under section 9 of the Act. However, the Court further held that the actions of the respondent, Trotter, in taking possession of the business, paying a deposit, and commencing to operate the business, constituted sufficient part performance to render the oral agreement enforceable in equity. The Court reasoned that it would be unconscionable to allow Fitzsimmons to rely on the absence of a written contract when Trotter had acted to his detriment in reliance on the agreement.

Consequently, the Court of Appeal dismissed Fitzsimmons' appeal and affirmed the decision of the primary judge, upholding the enforceability of the oral agreement.