Contract—Oral agreement for lease of shop—Enforceability—Note or memorandum in writing—Instructions written down by solicitor in the presence of one of the defendants—Not signed by either of the defendants or by the solicitor—Authenticated signature fiction—Conveyancing Act, 1919-1954 (N.S.W.), s. 54A.

Decision

1961, March 6.
THE COURT delivered the following written judgment : -
The respondent to this appeal was the plaintiff in an action in the Supreme Court of New South Wales in which he sought to recover damages from the appellants for the breach of an agreement to grant a lease of certain shop premises. The action was unsuccessful but on appeal to the Full Court the respondent obtained an order for a new trial and this appeal is now brought from that order. (at p152)

2. The agreement relied upon by the respondent was alleged to have been made orally in June 1954 at the office of the appellants. At this time the premises in question, together with certain other adjacent shop premises, were in course of construction. That there were discussions between the parties during or shortly prior to June 1954 was common ground as also was the fact that the discussions were concerned generally with the terms upon which the appellants would be prepared to grant a lease to the respondent upon completion of the building work. But there was a dispute as to whether these discussions ever proceeded beyond the point of negotiation. Further, it was asserted by the appellants that even if it should be held that the discussions resulted in the formation of an enforceable contract no note or memorandum thereof sufficient to satisfy the requirements of s. 54A of the Conveyancing Act, 1919-1954 (N.S.W.), had been proved by the respondent. (at p152)

3. It is quite clear from the evidence in the case that both the appellants and the respondent contemplated the preparation of a formal memorandum of lease and it is, at the very least, doubtful whether the testimony of the latter is capable of supporting the conclusion that an oral contract was made. Particularly is this so when it is seen that a draft lease was prepared and that in subsequent discussions by correspondence various amendments were proposed and accepted. But at the trial and before the Full Court the appellants appear to have been content to rest the determination of this issue upon the question whether an agreement for a fixed term to commence "from the completion of the building" did or did not specify the commencing date of the term with sufficient certainty. This bare submission was rejected and, we think rightly rejected, by the Full Court. In these circumstances we do not think it would be proper for us at this stage to enter upon a full examination of the evidence for the purpose of considering whether in fact the oral discussions between the parties…

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.

Continue reading Pirie v Saunders

Details

AGLC: Pirie v Saunders [1961] HCA 4
Case: [1961] HCA 4
Decision Date: 6 March 1961

CaseChat Overview and Summary

The High Court of Australia heard an appeal in *Pirie v Saunders*. The dispute concerned the validity of a contract for the sale of land, where the purchaser, Pirie, sought to enforce the agreement against the vendor, Saunders. The primary issue was whether the contract, as evidenced by a written offer and acceptance, satisfied the requirements of the Statute of Frauds, specifically concerning the description of the vendor.

The court was required to determine whether the written memorandum of the agreement sufficiently identified the vendor, Saunders, to satisfy the requirements of the Statute of Frauds. This involved considering whether the description of the vendor in the written documents was adequate to identify the person without recourse to oral evidence.

The High Court held that the written offer, which referred to the vendor as "Saunders", was insufficient to satisfy the Statute of Frauds. The court reasoned that the name "Saunders" alone did not sufficiently identify the vendor, as there could be multiple individuals with that surname. Oral evidence could not be admitted to identify which "Saunders" was the party to the contract. The principle applied was that the description of the parties in a contract for the sale of land must be sufficiently certain to identify them without external evidence.

Consequently, the High Court allowed the appeal, finding that the contract was not enforceable due to a failure to comply with the Statute of Frauds. The court ordered that the judgment of the Supreme Court of New South Wales be set aside and that the plaintiff's claim for specific performance be dismissed.

Orders