Malcolm v Selby

In *Malcolm v Selby and Ors*, the New South Wales Court of Appeal considered a dispute concerning the enforceability of a contract for the sale of land. The appellant, Mr. Malcolm, sought to enforce an agreement against the respondents, the Selby family, who were the vendors of the property. The core of the disagreement lay in whether a binding contract had been formed, particularly in light of certain conditions and communications between the parties.

The primary legal issue before the Court of Appeal was whether the correspondence exchanged between the parties constituted a sufficient note or memorandum in writing to satisfy the requirements of section 54A of the *Conveyancing Act 1919* (NSW), which mandates that contracts for the sale of land must be in writing. This involved determining whether the documents, when read together, evidenced an agreement on all essential terms, including the parties, the property, and the price, and whether the appellant had the authority to bind the respondents.

The Court analysed the series of letters and faxes exchanged between the parties and their respective agents. It applied the principles established in cases concerning the sufficiency of a memorandum for the purposes of the Statute of Frauds, focusing on whether the documents, taken as a whole, contained all the essential terms of the agreement and were signed by the party to be charged or their authorised agent. The Court found that the correspondence did not sufficiently evidence a concluded agreement on all essential terms, particularly regarding the identity of the purchaser and the precise nature of the agreement. Consequently, the Court held that the requirements of section 54A of the *Conveyancing Act 1919* were not met.

The Court of Appeal accordingly dismissed the appeal, upholding the decision of the primary judge that no enforceable contract for the sale of land had been established.