LUKEY AND MULHOLLAND Injunction-Part performance-Damages in lieu of specific performance or injunction
-Licence-Revocation-Contract-Negative obligation-Licence to sell sweets in theatre for five ears-Contract not to be performed within one year-Statute of MELBOURNE,
Frauds-Supreme Court Act 1928 (Vict.) (No. 3783), sec. 62 (4)-Instruments Mar. 2, 3;
Act 1928 (Vict.) (No. 3706), sec. 128. April 29.
The lessees of a theatre agreed with a confectioner to give him an exclusive right to sell sweets and confectionery in the theatre and its precincts during the continuance of a lease of a shop which the confectioner took from the owner of the theatre for a period of more than one year. The agreement was bandid:-
not in writing, and there was no note or memorandum in writing thereof. 52(N.S.W) S.R. 143 The confectioner exercised his rights under the licence for some time, but 69 W.N. 56
subsequently the lessees of the theatre repudiated the agréement and revoked the licence. In an action by the confectioner for an injunction and damages 1953/AS W/9.R 6
the learned trial Judge awarded damages in lieu of granting an injunction. 53(N.S.W.S.A. 105
On appeal to the High Court, Referred to:- 100
Held, (1) that the contract could not be performed within one year from 7 w n.
the making thereof; (2) that the contract was not one which equity would enforce by specific performance; (3) that an injunction could not have been 348.
granted on the ground of part performance to restrain revocation of the licence or the admission of others to sell sweets, and (4) that, therefore, damages could not be awarded for the breach thereof.
Circumstances in which a Court of equity will grant relief in the case of a contract of which there has been part performance, considered.
Decision of the Supreme Court of Victoria (Lowe J.) Lukey v. Theatre Royal Pty. Ltd., (1931) V.L.R. 73, reversed.
The plaintiffs, John Henry Lukey and William Gavin Mulholland, brought an action against the Theatre Royal Pty. Ltd., J. C. William- son Ltd. and Ernest Hillier (Victoria) Pty. Ltd., for breach of an agreement, alleging that in October 1926 it was orally agreed between the plaintiffs and the defendant, the Theatre Royal Pty. Ltd. or J. C. Williamson Ltd., substantially, that the plaintiffs should, with the consent of one, Divoli, take over the lease of a sweets shop adiacent to the Theatre Royal in Bourke Street, Melbourne, for the residue of the term thereof, and that at the expiration of such term the defendant would let and the plaintiffs would take the said shop for a term of five years from 5th July 1927 at a rental of £40 per week, and that in consideration thereof the plaintiffs should have until the expiration of the lease for five years the exclusive right to sell sweets and confectionery in the Theatre Royal and the precincts thereof. The plaintiffs, in accordance with such agreement, took…
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
JC Williamson Ltd v Lukey [1931] HCA 15
Case
[1931] HCA 15
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal from the Supreme Court of Victoria concerning an oral agreement between J.C. Williamson Ltd. (appellant) and Lukey and Mulholland (respondents). The respondents, who operated a sweets shop, were granted an exclusive licence to sell confectionery within the appellant's theatre and its precincts for a period of five years. This agreement was not in writing. The respondents took over a lease for the shop and commenced selling sweets in the theatre, making the agreed weekly payments. However, the appellant later repudiated the agreement and revoked the licence. The respondents sought an injunction to restrain this revocation and damages for breach of contract.
The central legal issues before the High Court were whether the oral agreement, which was not to be performed within one year and therefore fell within the Statute of Frauds, could be enforced in equity despite the lack of a written memorandum. Specifically, the court had to determine if the doctrine of part performance could be invoked to grant an injunction or specific performance, and consequently, whether damages could be awarded in lieu of such equitable relief. The court also considered whether the nature of the agreement was such that a court of equity would, in principle, grant relief.
The High Court held that the agreement could not be performed within one year and was therefore subject to the Statute of Frauds. It further determined that the contract was not one that equity would enforce by specific performance, primarily because it involved continuous supervision and personal services, and lacked a proprietary interest that equity typically protects. Consequently, an injunction could not be granted on the ground of part performance to restrain the revocation of the licence or the admission of others to sell sweets. As the equitable remedies of specific performance or injunction were unavailable, the court concluded that damages could not be awarded in lieu thereof under section 62(4) of the Supreme Court Act 1928 (Vict.). The appeal was allowed, and the judgment of the Supreme Court of Victoria was reversed.