Cooney v Burns [1922] HCA 8

Cooney v Burns [1922] HCA 8

The acts relied upon by the plaintiff—handing over the lease to the plaintiff's solicitors for preparation of transfer documents and incurring expenses—were not unequivocally referable to the performance of the substance of the contract, nor did they alter the relative positions of the parties concerning the subject matter (the land/lease). Such acts were ancillary or preparatory, not sufficient part performance as required by equity to remove the statutory bar. Accordingly, the doctrine of part performance did not apply to defeat section 229 of the Instruments Act 1915 (Vic.), and the appeal was allowed.

Parties
Plaintiff: John Thomas Burns; Defendant: Phillip Cooney
Jurisdiction
Australia
Judgment Date
24 April 1922
Procedural Posture
Appeal / On Appeal From the Supreme Court of Victoria
Outcome
Appeal allowed. Judgment entered for the defendant except as to the claim for return of £50 deposit.
Legal Topics
Specific Performance, Part Performance, Authority of Agent, Statute of Frauds, Section 228 and 229 Instruments Act 1915 (vict.)
Contract Specific Performance Part Performance Authority of Agent Statute of Frauds Section 228 and 229 Instruments Act 1915 (vict.)

Case Brief

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Parties

John Thomas Burns

Plaintiff

Phillip Cooney

Defendant

Procedural Posture

Appeal / On Appeal From the Supreme Court of Victoria

Legal Issues

  1. 1 Whether acts done in furtherance of a contract constituted 'part performance' sufficient to remove the bar of the Statute of Frauds/Instruments Act 1915 (Vic) sections 228/229.
  2. 2 Whether the doctrine of part performance applies where an agent was not authorized in writing as required by section 229.

Ratio Decidendi

The acts relied upon by the plaintiff—handing over the lease to the plaintiff's solicitors for preparation of transfer documents and incurring expenses—were not unequivocally referable to the performance of the substance of the contract, nor did they alter the relative positions of the parties concerning the subject matter (the land/lease). Such acts were ancillary or preparatory, not sufficient part performance as required by equity to remove the statutory bar. Accordingly, the doctrine of part performance did not apply to defeat section 229 of the Instruments Act 1915 (Vic.), and the appeal was allowed.

Court Disposition

Appeal allowed. Judgment entered for the defendant except as to the claim for return of £50 deposit.

Orders

  • Judgment for defendant except as to return of £50 deposit.
  • Defendant to have costs of action less any costs occasioned by the issue regarding authority of agent.