Harvey v Edwards Dunlop & Co Ltd

The case of *Harvey v Edwards Dunlop & Co Ltd* involved an appeal to the High Court of Australia from a decision of the Supreme Court of Victoria. The respondent, Edwards Dunlop & Co Ltd, had sued the appellant, Mr Harvey, for breach of an oral agreement. The agreement stipulated that in consideration of the respondent refraining from signing judgment against a company in which the appellant was interested, the appellant would execute a power of attorney authorising an attorney to sell certain Scottish property. The proceeds of this sale were to be used to pay the respondent a specific sum of money before a certain date, and an implied term was that the appellant would not impede the sale. The Supreme Court had found in favour of the respondent, holding that the agreement did not fall within the Statute of Frauds, thus not requiring a written memorandum.

The legal issues before the High Court were twofold: firstly, whether the oral agreement constituted a "special promise to answer for the debt, default or miscarriage of another" within the meaning of section 228 of the *Instruments Act 1915* (Vic), and secondly, if it did, whether there existed a sufficient note or memorandum in writing of the agreement to satisfy the statutory requirements. The appellant contended that the agreement was indeed a guarantee and that no sufficient written memorandum existed.

A majority of the High Court, comprising Knox C.J., Gavan Duffy and Starke JJ., dismissed the appeal. They found that even if the agreement was considered a special promise to answer for another's debt, a sufficient memorandum in writing was established through a series of connected correspondence between the parties' solicitors and the executed power of attorney. This documentation, when read together, contained all the essential terms of the agreement. Higgins J. concurred with the dismissal of the appeal, but on the primary ground that the agreement was not a special promise to answer for the debt of another, as the appellant's liability was confined to the proceeds of a specific asset and did not extend to his general assets. Therefore, the Statute of Frauds was not applicable.