1 “(1) No action may be brought upon any contract for the sale or other disposition of land or any interest in land, unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged or by some other person thereunto by him lawfully authorised. (2)This section applies to contracts whether made before or after the commencement of this Act and does not affect the law relating to part performance, or sales by the court.’

2 It was for some time unclear whether the effect of Statute of Frauds 1677, s 4 was to make contracts which failed to comply with the formalities void or merely unenforceable. It was ultimately settled in Leroux v Brown (1852) 12 CB 801, 138 ER 1119 that the contract was merely unenforceable. Since part performance was frequently ordered prior to this determination, it could be argued that part performance is not dependent on the contract being merely unenforceable, and hence that contracts can still be partly performed even though they are void under the 1989 Act. The view that part performance has in fact been abolished is, however, greatly strengthened by the fact that Law of Property Act 1925, s 40(2) has been repealed.

3 The Transfer of Land: Formalities for Contracts for Sale etc of Land (Law Com No 164, 1987).

4 See Gissing v Gissing (1970) AC 886; Lloydr Bank v Rosset (1990) 2 WLR 867.Google Scholar

5 Re Basham (1987) 1 All ER 405 at 410; Lloyds Bank v Rosset (1990) 2 WLR 867 at 877.Google Scholar

6 But see the view expressed in Hanbury and Maudsley, Modern Equity (13th ed, 1989, Sweet and Maxwell, Martin ed) at pp 844 and 856.

7 At para 5.2.

8 Re Taylor Fashions (1982) 1 QB 133 at 151–2 per oliver J; Re Basham (1987) 1 All ER 405; Crabb v Arun District Council (1976) Ch 179 at 193 per Scarman LJ; Amalgamated Investments and Property Co Ltd (in lig) v Texas Commerce International Bank Ltd (1982) QB 84 at 103 per Robert Goff J, and at 122 per Lord Denning MR; Attorney General for Hong Kong v Humphries Estate (Queen's Garden) Ltd (1987) 1 AC 114.

9 Combe v Cornbe (1951) 2 KB 215 at 224; Syros Shipping Co SA v Elaghill Trading Co (1980) 2 Lloyd's Rep 390.Google Scholar

10 (1862) 4 De GF & J 517, 45 ER 1285.Google Scholar

11 (1866) LR 1 HL 129 Google ScholarPubMed

12 (1884) 9 App Cas 699 Google Scholar

13 But see Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 Google Scholar

14 Compare Dillwyn v Llewellyn (1862) 4 De GF & J 517, 45 ER 1285 with Broughton v Snooke (1938) Ch 505.Google Scholar

15 Compare Wakeham v Mackenzie (1968) 2 All ER 783 with Re Barhum (1987) 1 All ER 405.Google Scholar

16 First, part performance would only operate where an oral contract existed, and thus could not be used where relationships were more tenuous. Proprietary estoppel is more flexible and will apply where there is an assurance, common intention, attempted gift or even where there is a mistake coupled with acquiescence or encouragement. Second, the acts of reliance which give rise to an estoppel are in general less restrictive than with part performance. There is little need for the acts to serve any evidentiary function and there can be no doubt that the payment of money can be an act grounding an estoppel.

17 Dillwyn, v Llewellyn, (1862) 4 De GF & J 517, 45 ER 1285.Google Scholar

18 Salvation Army Trustee Co Ltd v West Yorkshire Metropolitan County Council (1980) 41 P & CR 179.Google Scholar

19 Crabb v Arun DC (1976) Ch 179.

20 Griffiths, v Williams, (1977) 248 EG 947.Google Scholar

21 Plimmer v Wellington Corpn (1884) 9 App Cas 699, [1881 –85) All ER 1320.Google Scholar

22 Unity Joint Stock Banking Assoc v King (1858) 25 Beav 72, 53 ER 563.Google Scholar

23 Crabb v Arun DC (1976) Ch 179.

24 Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466.Google Scholar

25 Raffaele v Raffaele (1962) WAR 238 Google Scholar

26 (3rd ed, 1984, Sweet and Maxwell, London) at p 246.

27 Spry invokes the decision of the Full Supreme Court of Victoria in Thwaites v Ryan (1984) VR 65 as support for this proposition. See also Millett v Regent (1975) 1 NSWLR 62 at 66 per Hutley JA, which is interpreted by Ridge ‘The Equitable Doctrine of Part Performance and Proprietary Estoppel’ (1988) 16 MULR 725 at pp 736–737, as laying down that ‘the two doctrines should not be pleaded together as to do so would abrogate part performance’.

28 (1883) 8 App Cas 467.Google Scholar

29 (1854) 5 HLC 185, 10 ER 868.Google Scholar

30 (1883) 8 App Cas 467 at 473.Google Scholar

31 (1862) 4 De GF & J 517, 45 ER 1285.Google Scholar

32 (1866) LR 1 HL 129 at 170 per Lord Kingsdown. See also Rochdule Cuml Co v King (1853) 16 Beav 630 at 633–634 per Sir John Romilly MR.

33 [1976) Ch 179.

34 [1980) 3 All ER 710.Google Scholar

35 [1987) 1 All ER 405.Google Scholar

36 (1866) LR 1 HL 129 at 140–141.

37 For example, see the decision of Lord Hatherley LC in Crampton v Vum Railway Co (1872) LR 7 Ch App 562 at 568. See also Cullen v Cullen (1962) IR 268; Brady ‘An English and Irish View of Proprietary Estoppel’ (1970) 5 Ir Jur (ns) 239.

38 (1880) 15 ChD 90.Google ScholarPubMed

39 See Taylor Fashions Ltd v Liverpool Victoria Trustees Co Ltd (1982) QB 133 at 147–154; Andrews v Colonial Mutual Life Assurance Society Ltd (1982) 2 NZLR 556 at 570; Wham-O MFG Co v Lincoln Industries Ltd (1984) I NZLR 641 at 671; Stratulatos v Stratulatos (1988) 2 NZLR 424 at 43–36.

40 For example, see Woodbury v Gardner (1885) 77 Me 68; Jorgenson v Jorgenson (1900) 81 Minn 428, 84 NW 221; Kinderland v Kirk (1908) 131 Ga 454, 62 SE 582; Kinsell v Thomas (1912) 18 Cal App 683, 124 P 220; Vogel v Shaw (1930) 75 ALR 639; Walter v Hoffman (1935) 101 ALR 919; Wolfe v Wallingford (1938) 117 ALR 932. See also Summers ‘The Doctrine of Estoppel Applied to the Statute of Frauds’ (1931) 79 Un Pa L Rev 440 at p 448.Google Scholar

41 Andrews, v Charon, (1935) 193 NE 737. See also Glass v Hulbert (1869) 102 Mass 24, 3 Am Rep 418; Baldridge v Centgraf (1910) 82 Kan 240, 108 P 83; Johnston v Baldock (1921) 83 Okla 285, 201 P 654.Google Scholar

42 (1862) 4 De GF & J 517, 45 ER 1285.Google Scholar

43 (1866) LR 1 HL 129.

44 (1884) 9 App Cas 699.Google Scholar

45 East India v Vincent (1740) 2 Atk 84, 26 ER 451 as explained by Kay J in McManus v Cooke (1887) 35 ChD 681 at 694; Gregory v Mighell (1811) 18 Ves 328, 34 ER 341.Google Scholar

46 McManus, v Cooke, (1887) 35 ChD 351; Civil Service Musical Instrument Association Ltd v Whiteman (1899) 66 LJ Ch 484 at 486 (here Willmott v Barber (1880) 15 ChD 96 is also described as a case of specific performance by Kekewich J at 487); Ariff v Jadunath Majumdar Bahadur (1931) AIR 79 at 83, (1931) Ind LR (Calc Ser) 1235 at 1246; Canadian Pacific Railway v The King (1931) AC 414 at 428.Google Scholar

47 See Finn ‘Equitable Estoppel’ in Finn, ed, Essays in Equity (1985, Sydney, Law Book Company) Ch 4 at pp 59–94 and Finn ‘Equity and Contract’ in Finn, ed, Essays in Contract (1987, Sydney, Law Book Company) Ch 4 at pp 104–154, at p 123, ‘Part performance, most likely shares a common doctrinal foundation with equitable estoppel: equity will not permit an unconscionable insistence on strict legal rights — in part performance's case, the setting up of the writing requirement’.

48 (1981) 44 MLR 461 at 465 –466.Google ScholarPubMed

49 Cases and Materials on Equity and Trusts (3rd edn, 1989, Butterworths, Sydney) para 3022, p 1042.

50 [1982) QB 133 at 151–152.

51 As recognised and advocated by Finn ‘Equity and Contract’, op cit, at p 125.

52 [1976) AC 536 at 540per Lord Reid. See also Boutique Balmoral Ltd v Retail Holdings Ltd (1976) 2 NZLR 222 at 226 per Mahon J.

53 (1988) 164 CLR 387 at 485.Google Scholar

54 (1883) 8 App Cas 467.Google Scholar

55 [1985) 2 Qd R 292.Google Scholar

56 Fuller ‘Consideration and Form’ (1941) 41 Col LR 799; Langbein ‘Substantial Compliance with the Statute of Wills’ (1975) 88 HLR 489.Google Scholar

57 It must be doubted whether this is a result of the requirement of written evidence rather than the fact that most contracts are drawn up by solicitors using Law Society conditions of sale.

58 A view echoed in Chitty on Contracts (26th edn, 1989, Sweet and Maxwell, London, Guest, ed) at p 321.

59 In Butcher v Stapely (1685) 1 Vern 363, 23 ER 524 specific performance was ordered where the purchaser was in possession of land under an unsigned agreement; in Lester v Foxcroft (1700) Colles PC 108, l ER 205 the appellant had orally agreed to take a lease and had taken possession of the land and expended money erecting houses thereon.Google Scholar

60 In Butcher, v Stapely, (1685) 1 Vern 363, 23 ER 524 The Lord Chancellor declared ‘that in as much as possession was delivered according to the agreement he took the bargain to be executed’.Google Scholar

61 See Holdsworth A History of English Law (1924, Methuen & Co, London) Vol VI at 393.

62 See A. W. B. Simpson A History of the Common Law of Contract: The Rise of the Action of Assumpsit (1975, Clarendon, Oxford) at p 615.

63 (1913) 26 HLR 329 at 343; Simpson, op cit, at p 615. They might never have expected it to apply for two reasons: firstly, because equity would, prior to the Statute, only specifically enforce part executed contracts. Second, because where the purchaser was in possession the situation bore a similar resemblance to the situation where there had been a conveyance, ie feoffment with livery of seisin (which in effect absorbed the contract). See Heydon, , Gummow, and Austin, Cases and Materials on Equity and Trusts (3rd edn, 1989, Butterworths) para 3822, p 1040.Google Scholar

64 During the nineteenth century the courts seemed to become particularly conscious that the doctrine of part performance directly conflicted with the Statute of Frauds. Two lines of justification for interference developed — the ‘fraud theory’ (see Whitbread, v Brockhurst, (1784) 1 Bro CC 404, 28 ER 1205, and Caton v Caton (1866) LR 1 Ch App 137 at 148 per Lord Cranworth LC) and the ‘evidential theory’ (see Brittain v Rossiter (1879) 11 QBD 123 at 131 per Cotton LJ; Gunter v Halsey (1739) West T Hard 681,25 ER 1147, and generally Thompson ‘The Role of Evidence in Part Performance’ (1979) Conv 402) so as to do as little violence as possible to the words and function of the statute. The restrictive approach to part performance reached its peak in the case of Chaproniere v Lambert (1917) 2 Ch 356. The explicit recognition of the doctrine in s 40(2) provided a statutory legitimation for interference and the courts accordingly gradually relaxed the attendant restrictions upon the doctrine in cases such as Wakeham v Mackenrie (1968) 2 All ER 783; Kingswood Estate Co Ltd v Anderson (1963) 2 QB 169 and Steadman v Steadman (1976) AC 536.Google Scholar

65 But see the views expressed in Re Basham (1987) 1 All ER 405 at 410, that proprietary estoppel can give rise to a constructive trust, and the House of Lords decision in Lloyds Bank v Rosset (1990) 2 WLR 867 at 877, treating proprietary estoppel and constructive trusts as equivalents.Google Scholar

66 (1954) 3 DLR (2d) 785

67 See Birks An Introduction to the Law of Restitution (1988, Clarendon Press) p 277.

68 Carvery, v Fletcher, (1987) 34 DLR (46) 739 at 745. See also the New Zealand case of Van den Berg v Giles (1979) 2 NZLR 111.Google Scholar

69 (1858) 25 Beav 72, 53 ER 563.Google Scholar

70 It is distinctly possible that this type of remedial lien may now have to be used to secure the return of the entire purchase price in this sort of case. Prior to the 1989 Act, a purchaser under a purely oral contract, if unable to secure specific performance through part performance, would have been entitled to a purchaser's lien in order to secure the return of the purchase money and any related expenditure. Now, with the passing of s 2(1), in the absence of a written contract, it is arguable that such a person cannot be classed as a ‘purchaser’ at all with the result that, according to conventional thinking, an ordinary purchaser's lien would not be available to him. See Re Barrett Apartments Ltd (1985) IR 350; Coughlan, ‘Equitable Liens for the Recovery of Booking Deposits’ (1988) 10 DULJ 90.

71 (1984) 14 DLR (4d) 611.Google Scholar

72 Ibid, at 629. See also Chalmers, v Pardoe, (1963) 3 All ER 552; Avondale Printers & Stationers Ltd v Haggie (1977) 2 NZLR 124 at 143.Google Scholar

73 ER Ives Investments Ltd v High (1967) 2 QB 379.Google Scholar

74 [1982) 1 WLR 1109 at 1119 –1120. See also Martin (1983) Conv 69.Google Scholar

75 Re Bastable(1901) 2 KB 518; Pearce v Bastable's Trustee in Bankruptcy (1901) 2 Ch 112; Freevale Ltd v Metrostore Ltd (1984) 1 All ER 495.Google ScholarPubMed

76 Re Barrett Apartments Ltd (1985) IR 350.

77 [1987) 1 All ER 405 at 410 and 415. See also Stratulatos v Stratulatos (1988) 2 NZLR 424 at 437 –439.Google Scholar

78 Brewer Street Investments Ltd v Barclays Woollen Co Ltd (1954) 1 QB 428.

79 Op cit, at 291.

80 Van denBerg, v Giles, (1979) 2 NZLR 111; Stratulatos v Stratulatos (1988) 2 NZLR 424.Google Scholar

81 See Pascoe v Turner (1979) 2 All ER 945.Google Scholar

82 [1979) 2 NZLR 111.Google Scholar

83 Even if there had been Jeffries J pointed out that that there was no writing as required by the Contracts Enforcement Act 1956 and no acts capable of constituting part performance, Ibid, at 118. The latter observation is puzzling given the improvements to the property carried out by the plaintiff.

84 Ibid, at 120.

85 Ibid, at 120.

86 See also Stratulatos v Stratulatos (1988) 2 NZLR 424.Google Scholar

87 See Joint Receivers of Niltan Carson Ltd v Hawthrone (1988) BCLC 298.

88 For example, see Salvation a Amy Trustee Co Ltd v West Yorkshire Metropolitan Court& Council (1980) 41 P& CR 179.Google Scholar

89 [1987) 1 AC 114. See also Devlin v Northern Ireland Housing Executive (1982) NI 377.Google ScholarPubMed

90 Ibid, at 127–128.

91 (1988) 164 CLR 387.Google Scholar

92 Ibid; at 406.

93 Here Conveyancing Act 1919 (NSW), s 54A1 which is drafted in terms very similar to s 40 of the English Law of Property Act 1925.

94 164 CLR 387 at 433.Google Scholar

95 Thus with easements there will be little problem in applying estoppel given the decisions in Er Ives Investments Ltd v High (1967) 2 QB 379 and Crabb v Arun DC (1976) Ch 179. In the case of leases the want of formality will usually result in an implied common law tenancy, which will be periodic in nature, according to the mode by which the rent is paid. However, this will probably not be an adequate solution where long leases are involved.Google Scholar

96 Richards v Creighton Griffiths (Investments) Ltd (1972) 225EG 2104; New Hart Builders Ltd v Brindley (1975) Ch 342.

97 Sudbrook Trading Ltd v Eggleton (1983) 1 AC 444 at 477per Lord Diplock.Google ScholarPubMed

98 Laythoarp v Bryant (1836) 2 Bing NC 735. See also Barnsley, , Land Options (1978, Oyez) at p 80 where it was stated that there appeared to be no basic objection in principle to holding that a grantee's verbal acceptance of a written option created an enforceable contract for sale.Google Scholar

99 Russel v Russel (1783) 1 Bro CC 269, 28 ER 1121; Featherstone v Fenwick (1783) 1 Bro CC 270n, 28 ER 1122; Hurford v Carpenter (1785) 1 Bro CC 270, 28 ER 1122. See generally Fisher & Lightwood's Law of Mortgage (10th edn, 1988, Butterworths, London, Tyler, ed) at pp 64–71.

100 A point recognised by Hill (1990) 106 LQR 396 at 400. If so this appears to be an unintentional consequence — the Law Commission refer to it in neither Law Corn No 164, nor the Working Paper No 99 on Land Mortgages (1986).Google Scholar

101 Sunnocks, Lord Thurlow's Equity” or “a Cuckoo in the Legal Nest?”’ (1970) 33 MLR 131 at 132.Google Scholar

102 This would explain why such mortgages did not need to be registered as Class C(iv) Land Charges (estate contracts) under the Land Charges Act 1972.

103 [1939) 2 All ER 737. See also Re White Rose Cottage (1965) 1 Ch 940 where the Court of Appeal also took the view that the mortgage by deposit became merged into the equitable charge created by the memorandum, but nevertheless held that the mortgagee could validly protect the mortgage by registering a notice of deposit.Google Scholar

104 Derived from another Privy Council decision in Subramonian v Lutchman (1922) 50 Ind App 77 at 83 per Lord Carson.

105 Head v Egerton (1734) 3 P Wms 280, 24 ER 1065. See also Lord Eldon LC's comments in Ex p Coming (1803) 9 Ves 115 at 117, 32 ER 545 at 546, and Ex p Whitbread (1812) 19 Ves 209, 34 ER 496.

106 See now Companies Act 1985, s 395 et seq.

107 [1968) 1 Ch 325.Google ScholarPubMed

108 Ibid, at 333.

109 (1970) 33 MLR 131.CrossRefGoogle ScholarPubMed

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111 Ibid, at 568.

112 They are prohibited in New Zealand by s 77 of the Property Law Act 1952.

113 Corscadden, & Skuce, , ‘Deposit of Title Deeds’ (1953) 55 Jo Inst of Bankers in Ireland 253, especially at 262 where it is stated that ‘… an equitable deposit of title deeds has many advantages from the point of view of cheapness and convenience.Google Scholar