Perpetual Executors and Trustees Association of Australia Limited v Russell [1931] HCA 7

Perpetual Executors and Trustees Association of Australia Limited v Russell [1931] HCA 7

The plaintiffs, having established legal title to the land, were entitled to possession because the defendant relied on a parol agreement with option to purchase which did not comply with the requirements of the Statute of Frauds (Instruments Act 1928 (Vic), sec. 128), and for which there was no part performance. Such an agreement, unenforceable at law or in equity, cannot be relied on by the defendant as defence or by way of counterclaim. The Supreme Court's contrary reasoning, based on Kewley v Ball, was unsound.

Parties
Appellant/plaintiff: Perpetual Executors and Trustees Association of Australia Limited; Appellant/plaintiff: Eliza Ann Matthews; Respondent/defendant: William Thomas Russell
Jurisdiction
Australia
Procedural Posture
Appeal / Decision on Appeal From the Supreme Court of Victoria
Outcome
Appeal allowed. Judgment of Supreme Court set aside.
Legal Topics
Statute of Frauds, Option to Purchase, Parol Agreement, Landlord and Tenant, Specific Performance
Property Law Equity Statute of Frauds Option to Purchase Parol Agreement Landlord and Tenant Specific Performance

Case Brief

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Parties

Perpetual Executors and Trustees Association of Australia Limited

Appellant/plaintiff

Eliza Ann Matthews

Appellant/plaintiff

William Thomas Russell

Respondent/defendant

Procedural Posture

Appeal / Decision on Appeal From the Supreme Court of Victoria

Legal Issues

  1. 1 Whether a parol agreement with an option to purchase land, unenforceable for want of writing required by Statute of Frauds (Instruments Act 1928 (Vict.), sec. 128), could be relied on by a purchaser in possession as a defence to an action for recovery of land
  2. 2 Whether such agreement could be enforced by counterclaim or defence

Ratio Decidendi

The plaintiffs, having established legal title to the land, were entitled to possession because the defendant relied on a parol agreement with option to purchase which did not comply with the requirements of the Statute of Frauds (Instruments Act 1928 (Vic), sec. 128), and for which there was no part performance. Such an agreement, unenforceable at law or in equity, cannot be relied on by the defendant as defence or by way of counterclaim. The Supreme Court's contrary reasoning, based on Kewley v Ball, was unsound.

Court Disposition

Appeal allowed. Judgment of Supreme Court set aside.

Orders

  • Declare that the plaintiff Company is as executor of William Coldwell deceased entitled to an estate in fee simple in the land in the statement of claim mentioned.
  • Declare that the plaintiff Company as such executor is entitled to immediate possession of the said land.