the statute of frauds and limitations of 1867

THE STATUTE OF FRAUDS AND LIMITATIONS

of 1867 31 Vic. No. 22

Amended by Partnership Act of 1891, 55 Vic. No. 7 Sale of Goods Act of 1896, 60 Vic. No.6 Acts Citation Act of 1903, 3 Edw. 7 No. 10 Statute Law Revision Act of 1908, 8 Edw. 7 No. 18 Limitation Act of 1960, 9 Eliz. 2 No. 7

207

An Act to Consolidate and Amend the Laws relating to Frauds and the Limitation of Actions

[Assented to 28 December 1867]

References to "Pring's Statutes" and to the Act 28 Vic. No. 6 wer.e omitted from sectional notes throughout this Act by the Acts Citation Act of 1903, s. 10, title ACTS OF PARLIAMENT.

The sections of this Act which dealt with limitation of actions, ss. 16-28 were repealed by the Limitation Act of 1960, 9 Eliz. 2 No.7, s. 7. See now that Act, title LIMITATIONS.

[Preamble repealed by the Statute Law Revision Act of 1908, s. 2, title ACTS OF P ARLIAMENT.J

INTERPRETATION

1. Australia and the adjacent islands not to be deemed beyond seas. No part of Australia nor any island adjacent thereto (being part of the dominions of Her Majesty) shall be deemed to be beyond seas within the meaning of this Act.

STATUTE OF FRAUDS

2. Parol leases and interest of freehold shall have the force of estates at will only. 29 Car. 2, c. 3, s. 1. All leases estates interests of freehold or terms of years or any uncertain interest of in to or out of any messuages lands tenements or hereditaments made or created by livery and seisin only or by parol and not put in writing and signed by the parties so making or creating the same or their agents thereunto lawfully authorised by writing shall have the force and effect of leases or estates at will only and shall not either in law or equity be deemed or taken to have any other or greater force or effect any consideration for making any such parol lease or estates or any former law or usage to the contrary notwithstanding.

This section follows s. 1 of the Statute of Frauds, 1677, 29 Car. 2, c. 3. With respect to leases of land under the Real Property Acts, 1861 to 1963, see

ibid., s. 52, and Real Property Act of 1877, ss. 11, 18, title REAL PROPERTY. The words "any uncertain interest" refer to interests of uncertain duration,

Wood v. Lake (1751), Say. 3. The effect of entry under a lease Which is not in writing as required by

this section is to create a tenancy at will, Richardson v. Langridge (1811), 4 Taunt. 128; Doidge v. Bowers (1837), 2 M. & W. 365. Where entry is followed by payment of rent there is a tenancy from y.ear to year upon the terms of the void lease so far as they are applicable to such a tenancy, Clayton v. Blakey (1798), 8 Term Rep. 3. But where the lease can be treated as an agreement for a lease specifically enforceable in equity, such lease will be regarded as having been effectively granted in equity, Walsh v. Lonsdale (1882), 21 Ch. D. 9.

All agreements for leases must be in writing under s. 5. See also notes thereto.

208 FRAUDS Vol. 6

3. Except leases not exceeding three years, etc. 29 Car. 2, c. 3, s. 2. Except nevertheless all leases not exceeding the term of three years from the making thereof whereupon the rent reserved to the landlord during such term shall amount unto two third parts at the least of the full improved value of the thing demised.

This scrtion follows s. 2 of the Statute of Frauds, 1677, 29 Car. 2, c. 3. With respect to leases of land under the Real Property Acts, 1861 to 1963, see

ibid., s. 52 and the Real Property Act of 1877, ss. 11, 18, title REAL PROPERTY. The three years are computed from the date of making of the lease, not

necessarily from the date of its commencement, Rawlins v. Turner (1700), 1 Ld. Raym. 736; Fosler V. Reeves, [IS92] 2 Q.B. 255, at p. 257.

A lease is within the exception notwithstanding that it contains an agreement or option for a further term beyond the three years, Rollasoll v. Leon (1861), 7 H. & N. 73; Hand v. Hall (IS77), 2 Ex. D. 355, or if it will not of necessity last beyond the three years, Re Knight (1882), 21 Ch. D. 442, 458. Thus a yearly tenancy may be created orally notwithstanding that it will continue beyond the thrce years unless determincd by notice, H{/mmond v. Farrow, [1904] 2 K.B. 332, at p. 335.

It appears that a person suing for rent due under an oral lease for thrce years or less must prove that the rent amounts to two-thirds of the improved val[;e. See Larke Hoskins & Co. Ltd. v. leher (1929), 29 S.R.(N.S.W.) 142.

4. No leases or estates of freehold shall be granted or surrendered by word. 29 Car. 2, c. 3, s. 3. No leases estates or interests either of freehold or terms of years or any uncertain interest of in to or out of any messuages lands tenements or hereditaments shall be assigned granted or surrendered unless it be by deed or note in writing signed by the party so assigning granting or surrendering the same or their agents thereunto lawfully authorised by writing or by act and operation of law.

This section follows s. 3 of the Statute of Frauds, 1677, 29 Car. 2, c. 3. With respect to leases of land under the Real Property Acts, IS61 to 1963,

title REAL PROPERTY, see ibid., ss. 54, 65. An oral surrender is void even though the tenancy was creat.ed oraily,

Tay/or v. Chapm{//l (795), Peake, Add. Cas. 19; Matthews v. Smvcll (1S1S), S Taunt. 270.

This section does not apply to a surrender taking place by opcrati:)I1 of law, Thom{/s v. Cook (1SIS), 2 B. & Ald. 119; Grimman v. Legge (1S28), 8 B. & C. 324; Dodd v. Ack/om (1843), 6 M. & G. 672. As to surr.cnder by operation of law, see also Buchanoll v. Byrnes (1906), 3 C.L.R. 704.

An oral agreement made in consideration of a surrender of a lease taking place by operation of law will not found an action, Bagllall v. While (1906), 4 C.L.R. 89.

5. Promises and agreements by parol. 29 Car. 2, c. 3, s. 4. No action shall be brought whereby to charge any executor or administrator upon any special promise to answer damages out of his own estate (2) or whereby to charge the defendant upon any special promise to answer for the debt default or miscarriages of another person (3) or to charge any person upon any agreement made upon consideration of marriage (4) or upon any contract or sale of lands tenements or hereditaments or any interest in or concerning them (5) or upon any agreement that i~, not to be performed within the space of one year from the making thereof (6) unless the agreement upon which such action shall be brought or some memorandum or note thereof shall be in writing and signed by the party to be charged therewith or some other person thereunto by him lawfully authorised.

This section follows s. 4 of the Statute of Frauds, 1677, 29 Car. 2, c. 3. This section applies to simple contract debts alleged by way of set-off, s. 15.

STATUTE OF FRAUDS AND LIMITATIONS ss.3-5 209

Where this section is relied on it must be pleaded, see R.S.C. (1900), Order 22, rules 14, 20, title SUPREME COURT; Di~trict Courts Acts 1958 to 1964, s. 75, title DISTRICT COURTS, Vol. 4; the MagIstrates Courts Rules, 1960, rule 77, title MAGISTRATES COURTS.

A party who intends to rely on the statute must plead it, Painton v. Andresens Ltd., [1951] N.Z.L.R. 569. Leave to plead it as a further ground of defence was granted in Borg v. Borg (1952), 52 S.R.(N.S.W.) 92; 69 W.N.(N.S.W.) 83, at the trial in the District Court; and on appeal the Full Court held that the amendment was properly allowed.

For when contracts for the sale of goods are required to be evidenced by writing, see the Sale of Goods Act of 1896, s. 7, title MERCANTILE LAW.

The effect of this section is not to make the agreements therein mentioned void, but only to prevent their being enforced by action if the requirements of the section are not complied with, Leroux v. Brown (1852), 12 C.B. 801. The statute is a weapon of defence, not offence, and does not make any signed instrument a valid contract by reason of the signature if it is not such according to the good faith and real intention of the parties, per Lord Selbourne in Hussey v. HomePayne (1879), 4 App. Cas. 311; RIIs:,cll v. Slatcr, [1912J SI. R. Qd. 237; [1912] Q.W.N.40.

Where a contract has been so far executed that nothing remains to be done but payment of the money by the defendant, this section is no defence. See Griffith v. YOllng (1810), 12 East 513; POll Iter v. Killingbeck (1799), 1 B. & P. 397; Koellner v. Breese (1909), 9 S.R.(N.S.W.) 457; Bagnall v. White (1906), 4 C.L.R. 89; Cocking v. Ward (1845), 1 C.B. 858.

As to how far a parol agreement corning within this section may be relied on by way of defence, see Perpetllal Execiltors and Tmstees Assoc. of Australia Ltd. v. Russell (1931), 45 CLR. 146; Gray v. Ellis, [1925J SI. R. Qd. 209; [1925] Q.W.N. 20; 19 Q.J.P.R. 73; KClt'iey v. Ball, rl913j V.L.R. 412; Miles v. New Zealand, etc., Co. (1886), 32 Ch. D. 266; Morris v. Baron [1918] A.C. 1: Tiernan v. Tieman, [1921J SI. R. Qd. 265; [1921] Q.W.N. 40; 30 C.L.R. 608.

Where a contract contains a promise to which this section applies, together with another promise to which this section docs not apply, the whole contract is unenforceable except when the promises are not only themselves severable but may be referred to and supported by independent or divisible considerations or divisible parts of a consideration capable of distribution, Horton v. Jones (1934), 53 C.L.R. 475.

Where a contract is not enforceable by reason of the provisions of this section, an action will not lie against a third person for inducing the breach of such contract, DOl/st v. Godhehear (1925), 28 W.A.L.R. 59.

The memorandum or note.-It is only necessary that there should be a written memorandum signed by the party against whom the contract is sought to be enforced. It is not neces~,ary for it to be signed by the other party, Smith v. Neale (1857), 2 C.B.N.S. 67; Reuss v. Picksley (1866), L.R. 1 Exch. 342. As a general rule it is sufIicient to satisfy this section that the party charged made the afTer in writing, even though it was not accepted in writing. See Howard Smitil & Co. Ltd. v. Vorawa (1907), 5 C.L.R. 68; lieppingstone v. Stewart (1910), 12 C.L.R. 126; Niesmann v. Collingridge (1921), 29 C.L.R. 177.

The consideration and promise and all the terms must be shown by the memorandum; Wain v. War/ters (1804), 5 East 10; Saunders v. Wakefield (1821), 4 B. & Ald. 595; A lbert Building Society v. Pratt (1893), 19 V.L.R. 195 (contract to pay interest, rate of which not shown); Corcoran v. O'Rourke (1888), 14 V.L.R. 889 (purchase money to be paid by bill, but no statement of term of the bill). But the consideration for a guarantee need not appear in the writing, s. 6. Where the real consideration was the giving of an interest in land, and the written memorandum merely stated it as "value received", it was held that the memorandum was insufIicient, Corley v. Chippendale (1882), 1 Q.L.J. 69.

On the sufIiciency of a memorandum, see Leeman v. Stocks, [1951] Ch. 943; [1951] 1 All E.R. 1043; [1951] 2 T.L.R. 622. In that case an auctioneer, who was agent for both parties, inserted (before sale) the initials and surname of the vendor in a form for the sale of certain premises by private treaty, and thereafter submitted the property for sale by auction. The plaintiff was adjudged the highest bidder and signed the same form. In a suit for specific performance the document was held to be a memorandum sufficient to bind the vendor, and specific performance was

210 FRAUDS Vol. 6

decreed accordingly. Cf. Phillips v. Butler, [1945] Ch. 358; [1945] 2 All E.R. 258; 61 T.L.R. 477 (authority of auctioneer to sign on behalf of vendor contract for sale of freeholds).

The fact that the parties intended to have a formal contract drawn does not prevent the agreement already reached (as evidenced by any writing signed by the party to be charged or his lawfully authorized agent) from being recordl!d as a complete contract, Smith v. Matheson, [1945] N.Z.L.R. 291, applying Chinnock v. Marchioness of Ely (1865), 4 De G. J. & S. 638; 46 E.R. 10.66.

For illustrations of the insufficiency of the memorandum because of the omission of a material term, see Johnson v. Humphrey, [1946] 1 All E.R. 460. (agreement for sale of house; deposit paid; "balance to be paid immediately on possession," document silent as to when possession was to be given; contract held unenforceable), James v. Thomas H. Kent & Co. Ltd., [1950.] 2 All E.R. 1099 (oral contract of employment for three years as director of a company; minute of meeting appointing him insufficient as not indicating general nature of duties he had to perform), Burgess v. Cox, [1950.] 2 All E.R. 1212 (sale of land, two documents; no reference to deposits which were to be included in the sale).

In Smith v. Lush (1952), 52 S.R.(N.S.W.) 20.7; 69 W.N.(N.S.W.) 220., McLelland, I., applying Eccles v. Bryant, [1948] Ch. 93, held that a draft contract containing terms essentially different from those of a concluded oral contract is not a sufficient memorandum.

See also Delaney v. T. P. Smith Ltd., [1946] K.B. 393; [1946] 2 All E.R. 23; 62 T.L.R. 398 (action of trespass against freeholder; forcible eviction; oral agree-ment for a demise).

Whether a particular receipt is also a memorandum within the meaning of the section is a matter of construction. In Beckett v. Nurse, [1948] 1 K.B. 535; 64 T.L.R. 95; [1948] 1 All E.R. 81, the Court of Appeal held that the document there in question was not a contract for the reasons inter alia that only the defendant had signed it and that the wording did not show that it was intended to contain all the terms on which the parties had agreed. Cf. and contrast Hutton v. Watling, [1948] 1 Ch. 398; [1948] 1 All E.R. 80.3; 64 T.L.R. 326.

The court is entitled to read together two documents and to decide whether, when so read together, they constitute a sufficient memorandum, but has no power to insert in the contract a term which is not in the memorandum, BlIrg,ess V. Cox, [1951] Ch. 383; [1950.] 2 All E.R. 1212; [1951] 1 T.L.R. 531.

A contract evidenced by writing may be impliedly rescinded by a subsequent parol contract where there is a clear intention to rescind, as distinguished from a mere intention to vary. So held in Dudgeon v. Chie (1955), 55 S.R.(N.S.W.) 450..

For an example of the distinction between a contract for the sale of goods to a special order and a contract for work and labour to be done and materials to be supplied, see J. Marcel (Furriers) Ltd. v. Tapper, [1953] 1 All E.R. 15; [1953] 1 W.L.R. 49, where it was held that the contract was unenforceable because of the absence of a memorandum in writing, signed by the defendant.

The memorandum must show the names of the parties, nominally or by description or reference, so that there can be no dispute as to their identity; Sale v. Lamhert (1874), L.R. 18 Eq. 1; Shepperson v. Kin Kin Co--operative Dairy Co., [1927] SI. R. Qd. 19; [1927] Q.W.N. 2; [1926] SI. R. Qd. 20.8; [1926] Q.W.N. 32; Potter v. Duffield (1874), L.R. 18 Eq. 4; Carr v. Lynch, [190.0.] 1 Ch. 613; King v. Grimwood (1891), 17 V.L.R. 253; Ford v. Young (1882), 8 V.L.R. (Eq.) 93; Riley v. Melrose Advertisers (1915), 17 W.A.L.R. 127. A contract signed by an agent for and on behalf of the owner where the agent is himself the owner, is a sufficient description of the vendor; MacCormac v. Bradford, [1927] S.A.S.R. 152; Marzo v. Land & Homes Ltd. (1931), 34 W.A.L.R. 62. Where the defendant's name did not appelr in the memorandum signed by his agent, but an assumed name had been ins.erted with his knowledge, parol evidence was admitted to identify the defendant as the principal, Minter v. Jamieson (1924), 24 S.R.(N.S.W.) 589.

The memorandum or contract for the sale of land must identify the property sold; it is not sufficient for the vendor to refer to it as "my property" alone, Corcoran v. O'Rourke (1888), 14 V.L.R. 889. See also Watson v. lsseil (1890.), 16 V.L.R. 60.7. For cases in which it was held that the property was sufficiently identified, see Crichton v. Morris (1884), 10. V.L.R. (Eq.) 338 (frontage of 50. feet to a specified street with a right of way at rear); McDowell v. Meader (1891), 13 A.L.T. 116 (property described as being at the

STATUTE OF FRAUDS AND UMITATIONS s.5 211

corner of two named streets); Price v. Shalders (1897), 3 AL.R. 98 (sufficient description of property to allow identification by parol evidence); Parker v. Barnett (1889), 16 V.L.R. 214; Dinan v. Harper, [1922] V.L.R. 49.

An agreement for a lease must describe the property, but parol evidence is admissible to identify the property with that mentioned, Flockton v. Leonard (1901), 20 N.Z.L.R. 431. The date of commencement must also appear from the documents, Banovich v. Smith (1908), 27 N.Z.L.R. 73, if not expressly, then by reference to circumstances from which it can be clearly ascertained, Valentine v. O'Donnell (1906), 25 N.Z.L.R. 779; Tooth & Co. Ltd. v. Bryen, No.2 (1922), 22 S.R.(N.S.W.) 541; Lonsdale v. Whittaker (1915), 17 W.A.L.R. Ill; Toogood v. Mills (1896), 23 V.L.R. 106. The memorandum must also show the rent, Dolling v. Evans (1867), 36 L.J. Ch. 474, and the term of the lease, Fitzmaurice v. Bayley (1860), 9 H.L.C. 78.

The principle which allows verbal evidence to be given of the terms of a lease within the exceptions in s. 3, is not applicable to allow of the proof of an agreement relating to a surrender taking effect by operation of law, Bagnall v. White (1906), 4 C.L.R. 89.

An authority given to his agent by a party to a subsequent contract cannot be a memorandum of that contract sufficient to satisfy this section, M·cCaul v. Clark, [1929] V.L.R. 233.

A signed memorandum agreeing to be bound according to terms orally agreed upon, but not contained in writing, is not sufficient, Sinclair, Scott & Co. Ltd. v. Naughton (1929), 43 C.L.R. 310.

The question whether a particular contractual term not in writing is part of the contract so as to make the contract unenforceable, or a collateral stipulation, and so not affecting the main contract, is one of fact, and, therefore, for the jury, Leipner v. McLean (1909), 8 C.L.R. 306.

In actions for specific performance, where the memorandum omits a condition or stipulation which is in favour of the party seeking to enforce the contract, he may waive the stipulation and sue on the writing as it stands, Bicknell v. Bell (1897), 3 AL.R. 162.

In order to constitute a memorandum from several writings, there must be clear reference in the one signed by the party to be charged to another document capable of identification by parol evidence; Thomson v. McInnes (1911), 12 C.L.R. 562; Harvey v. Edwards Dunlop & Co. Ltd. (1927), 39 C. L.R., at p. 307; Kingsbury v. Coleman (1899), 17 N.Z.L.R. 327; Joyce v. Wood (1909), 28 N.Z.L.R. 692; Wallace v. Stevenson (1898), 16 N.Z.L.R. 166; Nicholls v. Davis (1889), 15 V.L.R. 184; Simms v. Habich (1879), 13 S.AL.R. 89; Tomlinson v. Daniels (1931). 33 W.A.L.R. 101. In order to connect written documents containing terms of the contract, it is not sufficient for the document signed to refer to the transaction in terms which do not indicate whether such transaction was in writing or not, Thomson v. McInnes (1911), 12 C.L.R. 562. Where a list which purported to be attached to a contract at the time of its execution was not prepared and annexed to such contract until after the execution of the contract, but was prepared during the same interview and attached to one of the copies with the assent of both parties, it was hdd that the contract and list together were a sufficient memorandum, Laurence v. Fordham, [1922] V.L.R. 705. The contract of service of a secretary of an unincorporated association was held not 10 be sufficiently evidenced by writing where it was subject to the terms of a rule of the association and there was noVhing in his appointment to connect it with the contents of the rule, Rorer v. Collingridge, [1935] St. R. Qd. 1. In order that documents may be connected together to make a sufficient memorandum of a contract for 1he sale of land, they must be consistent as to the terms of the contract, Corcoran v. O'Rourke (1888), 14 V.L.R. 889. Documents, the corners of which were folded together, were held to be sufficiently attached, McEwan v. Dynon (1877), 3 V.L.R. 271. See also McDonald v. Rocklands Station Pty. Ltd. (1926), 20 Q.J.P. 178 (Mag. Cas.).

A CDntract requir.ed to be in writing may be wholly discharged by parol, but cannot be partially varied by parol, Morris v. Baron, [1918] A.C. 1. Where -a provision of a contract required to be in writing is waived, without such waiver constituting a variation of the original contract, the fact that Vhe waiver is not in writing does not affect an action on the contract. See Dowling v. Rae (1927), 39 C.L.R. 363.

212 FRAUDS Vol. 6

Where, in attempting to establish a written contract for the sale of land to him by letters, a plaintiff fails, but he proves a subsequent parol agreement, he cannot rely upon the letters as constituting a sufficient memorandum, Haydon v. McLeod (1901), 27 V.L.R. 395. See also McCaul v. Clark, [19291 V.L.R. 233.

Where ,the parties have reduced the terms of their contract to writing, evidence is not admissible to vary the terms contained in the writing, unless it is shown that rhe writing was not intended to embody the whole agreement, Gordon v. Macgregor (1909), 8 C.L.R. 316. And where the writing does not embody the whole agreement, this section will prevent proof of the agreement.

The signature.-There must be a signing either by an actual signature of the name or something intended by the writer to be equivalent to a signature, Caton v. Caton (1867), L.R. 2 H.L. at p. 139; Schneider v. Norris (1814), 2 M. & S. 286. A signature may be constituted by a written or printed heading if adopted by the party charged, Behnke v. Bede Shipping Co., [1927] 1 K.B., at p. 660; [1927] Ail E.R. Rep. 138. Where the party sought to be charged has acknowledged a signature previously affixed by evincing an intention to treat the paper hearing such signature as the authentic expression of the contract, such acknowledgment constitutes sufficient signatur.e, OT ollng V. Walter Reid & Co. Ltd. (1932), 47 C.L.R. 497.

Signature in the full name is not necessary, see Rodrick v. City Mutual Life A.I'sce. Society Ltd. (1897), 18 L.R.(N.S.W.) (Eq.) 128, where 'The City Mutual Life" was held suffici.ent to describe the defendant.

On "signed" see Harrison v. Call to alld Another (1953), 55 W.A.L.R. 58; Neil v. Hewells (1953), 89 C.L.R. 1.

There must be a signature, or something intended to be equivalent thereto, even though the party wrote ali the agreement himself, Selby v. Selby C 1817), 3 Mer. 2. The circumstance of the name of the party being written by himself in the body of the agreement is not enough unless intended as a signature, Stokes v. Moore (1786), 1 Cox CEq.) Cas. 219; Hawkins v. Holmes (1721), 1 P. Wms. 771; Russell v. Slater, [1912] St. R. Qd. 237, at p. 253. Provided the name is so inserted as to authenticate the instrument, it is a sufficient signature, in whatever part it is found, Ogilvie v. Foljambe (1817), 3 Mer. 53; Caton v. Caton (1867), L.R. 2 H.L. 127.

Signature by an agent.-The agent's authority need not be in wntmg, Coles v. Trecothick (1804), 9 Ves., at p. 250; Clinan v. Cooke (1802), 1 Sch. & Lef. 31. A subsequent recognition of the authority is sufficient, Macleall v. Dllnn C 1828), 4 Bing. 722. The authority must be an authority to sign the contract, Boyd v. O'Connor, [1923] V.L.R. 603.

The signature of a solicitor approving a draft is not sufficient, Thornbury v. Bevill (1842), 1 Y. & C. Ch. Cas. 554; Smith v. Wehster (1876), 3 Ch. D. 49; Mogg v. Lord Raglan, elc., Co. (1878), 4 V.L.R. CEq.) 138, unless tt.e solicitor has been expressly or impliedly authorized to make the contract, Daniels v. Trejusis, [1914] 1 Ch. 788; Griffiths v. Humber, [18991 2 Q.B. 414. As to authority of solicitors, 'ee also Too[(ood v. Mills (1896), 23 V.L.R. 106; Jolliffe v. Billmberg (1870), 18 W.R. 784; Homer v. Walker, [1923] 2 Ch. 218; HORan v. Hogan (1869), 8 S.C.R.CN.S'w.) CEq.) 96.

Promi~e by an executor or administrator to be personally liable.-See the cases cited in 24 English and Empire Digest, eRp!.) p. 703.

Promise to answer for the debt, default, or miscarriages of ancther.-The section has no application where a primary liability is incurred by the promisor, but only applies where he incurs a secondary liability in respect of some matter for which another is primarily liable, Birkmyr v. Darnell (1704), 1 Salk. 27; Eastwood v. Kenyon (1840), 11 Ad. & E!. 438, at p. 446. Where a person promised to pay if another made default in accounting for moneys in the course of his employment, it was held that the guarantee was not against the tort but against the pecuniary obligation arising out of the tort, and that as, with respect to this obligation, a primary liability had been undertaken, the contract of indemnity did not require to be in writing, Connor v. Tasmanian Permanent Executors and Trustees Assoc. Ltd. (1933), 28 Tas. L.R. 93 (special leave to appeal granted by the High Court, but appeal not proceeded with).

The section does not apply to a promise to pay the debt of another under such circumstances that the original debt is extinguished. Goodman v. Chase (1818), 1 B. & Ald. 297; Angel v. Hope, [1927] St. R. Qd. 221; [1927] Q,W.N. 37, nor does it apply unless the promise is made to the creditor 01' person to

STATUTE OF FRAUDS AND LIMITATIONS s.5 213

whom the duty is owing, Eastwood v. Kenyon (1840), 11 Ad. & El. 438. A promise in the nature of an indemnity is not within the statute, although it may involve the obligation of discharging a debt for which another person is primarily liable, Re Hoyle, [1893] 1 Ch. 84. A contract to pay creditors a c?mposition of so much in the pound on the amount of the debts due by a thIrd person is not within this section, Gray v. Pearson (1877), 3 V.L.R. (L.) 81. Where a defendant deducted from the wages of an employee, either at his request or by his consent, the amount of a debt due by the employee to the plaintiffs a~d promised the plaintiff to pay the amount to them, it was held that such promIse was not a promise to pay the debt of another in terms of this section, Steggall v. Lymburner (1912), 14 W.A.L.R. 201.

It is not necessary for the consideration for the guarantee to appear in the writing, s. 6.

Agreements in consideration of marriage.-The section does not apply to contracts to marry, but to contracts to do something in consideration of an actual marriage, Cork v. Baker (1717), 1 Strange 34.

Contract or sale of lands, or any interest therein.-The words "lands, tenements, or hereditaments" refer to a fee simple, and the other words refer to a chattel interest or some interest less than a fee simple, Evans v. Roherts (1826), 5 B. & C., at p. 839. A contract for the sale of fixtures is not within the scope of this section, Malmsbury, etc., Co. v. Tucker (1877), 3 V.L.R. (L.) 213.

A contract by which partners in an enterprise the assets of which consist of real estate agree to give a third party an interest as a partner whereby he acquires an interest in the land is a contract for sale of an interest in land, and this is not affected by the rule that as between partners land which is a partnership asset is regarded as personalty in equity, Meyenberg v. Pattison (1890), 3 Q.L.J. 184; Caporn v. Dixon (1904), 6 W.A.L.R. 71. But where at the time of the agreement the parties have no interest in the land but it is a bargain with reference to the acquisition of land in the future there is no need for writing, Taylor v. Lowe (1901). 11 Q.L.J. 90; 11 Q.L.J. (N.C.) 28; Queensland Trustees Ltd. v. Concanon, [1910] St. R. Qd. 162; [1910] Q.W.N. 24; Brown v. Rohertson (1890), 16 V.L.R. 786, at p. 789. See also Williams v. Hartin (1899), 1 N. & S. 132; Kilpatrick v. Mackay (1878). 4 V.L.R. (Eq.) 28.

A contract for a right to work on land and take away part of the minerals is within the statute, Moffat v. Sheppard (1909), 9 C.L.R. 265, at p. 271. The Mining Acts, 1898 to 1955, s. 21, title MINING, provides that an interest in land held under a miner's right or a business license under that Act shall be deemed to be land for the purposes of this Act.

An option, for consideration, to purchase a lease, is an agreement with respect to an interest in land, Jeffrey v. Anderson, [1914] St. R. Qd. 66; [1914] Q.W.N. 14.

An agreement to find money to be lent to a party to the agreement, such money to be secured by mortgage upon the borrower's lands, is within this section, Dalgety & Co. Ltd. v. Gray (1919), 26 C.L.R. 249.

A contract to leave by will property which consists of land appears to be within this section. See Horton v. Jones (1934), 53 C.L.R. 475, noting the difference in wording between the provision there construed and this section.

As to when a contract for sale of standing timber is within the section, see Waugh v. Harper, [1937] St. R. Qd. 327; 31 Q.J.P.R. 124.

As to how far growing crops are interests in or concerning land, see CuI/an v. Pearse (1864), 3 S.C.R.(N.S.W.) 200, and Miller v. Gulliver (1880), 1 L.R.(N.S.W.) 176.

An agreement for the purchase of the right to depasture sheep upon land held under a pastoral license was held to be for the sale of an interest in or concerning land, Bromell v. Robertson (1886), 12 V.L.R. 560, but not an agreement giving an irrevocable license to travel stock across land for the purpose of using a dip on the land, Michelmore v. Breen, [1920] St. R. Qd. 266; [1920] Q.W.N. 43, nor an agreement not to distrain, Ah Chin v. Thiel (1887), 13 V.L.R.485.

214 FRAUDS Vol. 6

A contract relating to property which consists of land at the time the contract is entered into is within this section, even though such property may be converted into some other form prior to performance of the contract, Horton v. lones (1934), 53 C.L.R. 475.

Agreements not to be performed within a year.-The time from which the year is calculated is the date of the agreement, not the date when it is commenced to be performed, Dale v. McCulloch & Co. (1883), 9 V.L.R. (L.) 136; Riley v. Melrose Advertisers (1915), 17 W.A.L.R. 127.

Where the agreement shows on its face that the parties contemplated its performance to extend over more than a year, it is within the section. But it is not within the section where it is such that it may possibly be perform<~d within a year and there is nO' express provision to the contrary, Peter v. Compton (1693). Skin. 353; Smith v. Westall (1698), 1 Lord Raym. 316; Souch v. Strawbridge (1846), 2 C.B. 808.

The mere fact that an agreement contemplating performance beyond the year may be terminated by the parties by notice or otherwise during the year does nnt take it out of the section, Dobson v. Collis (1856), 1 H. & N. 81; Birch v. Liverpool (1829), 9 B. & C. 392. Thus a written contract of partnership to continue until dissolved by mutual consent unless previously determined by a specified notice is not an agreement that is not to be performed within the space of one year in terms of this section, and may be varied by parol, GibiJ v. Sell, [1922] V.L.R. 561.

A contract fnr employment of a secretary of a trade union was held to be one not to be performed within a year in Roper v. Collingridge, [1935] St. R. Qd. 1.

Notwithstanding that an oral agreement is unenforceable for the reason that it is not to be performed within the space of a year, if the plaintiff has done acts for the benefit of the defendant, and the defendant has accepted the benefits of such acts, the plaintiff is entitled to have a quantum meruit claim heard and determined, Borg v. Borg (1952), 52 S.R.(N.S.W.) 92; 69 W.N.(N.S.W.) 83.

Part performance.-Under the principles of equity, this section will not be allowed to be used as an instrument of fraud, and specific performance of a contract not evidenced by writing as required by this section will be granted where one party to the agreement has performed certain acts under it so as to render it inequitable and unjust that the other party should take advantage of the statute. McCormick v. Grogan (1869), L.R. 4 H.L. 82; Caton v. Caton (1867), 2 App. Cas. 127; Short v. Gill (1892), 13 L.R.(N.S.W.) (Eq.), at p. 160; Burns v. Cooney, [1921] V.L.R. 541; 30 C.L.R. 216; Sinclair v. Schildt (1914), 16 W.A.L.R. 100; Guest v. Watson (1891), 17 V.L.R. 497. But this principle is not applicable to contracts of guarantee, Angel v. Hope, [1927] St. R. Qd. 221; [1927] Q.W.N. 37.

Acts relied on as part performance must be unequivocally referable to some such agreement as that alleged, Thomas v. R. (1904), 2 C.L.R. 127; Maddison v. Alderson (1883), 8 App. Cas. 467; McBride v. Sandland (No. I) (1918), 25 C.L.R. 69, at p. 78; Kaufman v. Michael (1892), 18 V.L.R. 375. Plyment of "n increased rent by a tenant in possession has been held to be a sufficient part performance of an agreement for a lease, Nunn v. Fabian (1865), 1 Ch. App. 35; Miller v. Sharp, [1899] 1 Ch. 622. Taking possession of property contracted to be sold is generally a sufficient part performance, Brough v. Nettleton, [1921] 2 Ch. 25; Saint v. Adams, [1921] 51. R. Qd. 41; [1921] Q.W.N. 14. The fact that a donee under an intended settlement had been allowed to dea, with the property intended to be settled was held to be a sufficient part performance, Re Douyere (1862), 1 S.C.R. 91. Mere payment of money is not a sufllcient part performance, King v. Grimwood (1891), 17 V.L.R. 253.

The doctrine of part performance is not limited to contracts for the sale of lands: it is applicable wherever the contract is one of which equity will grant specific performance. So held by Sholl, J., in Commonwealth Oil R,qfineries v. Hollins, [1956] V.L.R. 169; [1956] A.L.R. 560, following McManus v. Cooke (1887), 35 ChD. 681, per Kay, J., at pp. 690 et seq., and I. C. Williamson Ltd. v. Lukey and Mulholland (1931), 45 C.L.R. 282.

Unless a plaintiff can show part performance of parol variations alleged by him to form part of a written agreement, he cannot obtain rectification of such written agreement and specific performance of the agreement so rectified, Guest v. Watson (1891), 17 V.L.R. 497.


For an example of an act relied on as part performance but insufficient to take the case out of the section, see Francis v. Francis, [1952] V.L.R. 321; [1952] A.L.R. 573, where the Full Court of Victoria examined some of the authorities.

The doctrine of part performance is only available in actions for specific performance, Gummon v. Barter (1899), 1 W.A.L.R. 58.

As to part performance of a contract within this section, see also I. C. Williamson Ltd. v. Lukey (1931), 45 C.L.R. 282; Moffat v. Sheppard (1909), 9 C.L.R. 265; Queensland Trustees Ltd. v. Concanon, [1910] St. R. Qd. 162; [1910] Q.W.N. 24.

For further cases on this section, see 8 Halsbury's Laws of England, 3rd ed., p. 87; 12 English and Empire Digest (Rpl.), p. 133 et seq.

6. Consideration for guarantee need not appear by writing. 19 & 20 Vic. c. 97, s. 3. No special promise made by any person after the twenty-fifth day of August one thousand eight hundred and sixty-four to answer for the debt default or miscarriage of another person being in writing and signed by the party to be charged therewith or some other person by him thereunto lawfully authorised shall be deemed invalid to support an action suit or other proceeding to charge the person by whom such promise shall have been made by reason only that the consideration of such promise does not appear in writing or by necessary inference from a written document.

This section follows s. 3 of the Mercantile Law Amendment Act, 1856 (19 & 20 Vic. c. 97).

This section is to be read with s. 5. It dispenses with written evidence of the consideration, but not of the promise, Holmes v. Mitchell (1859), 7 C.B.N.S. 361; Sheers v. Thimbleby & Son (1897), 76 L.T. 709. It is not necessary that the consideration for a guarantee appear in the writing where the contract is one not to be performed within a year, Barron v. Geddes (1897), 3 AL.R. 159.

For the effect of a partial release which in no way alters the nature of the obligation but merely reduces the quantum, see Hancock v. Williams (1942), 42 S.R.(N.SW.) 252.

7. (Repealed.) Repealed by Partnership Act of 1891, s. 4, title PARTNERSHIP. See now

s. 21 of that Act.

8. (Repealed.) Repealed by Sale of Goods Act of 1896, s. 60, title MERCANTILE LAW.

See now s. 7 of that Act.

9. In actions of debt or upon the case no acknowledgment shall be deemed sufficient unless it be in writing or by part payment. 9 Geo. 4, c. 14, s. 1. In actions of debt or upon the case grounded upon any simple contract no acknowledgment or promise by words only shall be deemed sufficient evidence of a new or continuing contract whereby to take any case out of the operation of this or any statute of limitations or to deprive any party of the benefit thereof unless such acknowledgment or promise shall be made or contained by or in some writing to be signed by the party chargeable thereby

Joint contractors. and where there shall be two or more joint contractors or executors or administrators of any contractor no such joint contractor executor or administrator shall lose the benefit of such

216 FRAUDS Vol. 6

enactments so as to be chargeable in respect or by reason only of any written acknowledgment or promise made and signed by any other or others of them

Provided always that nothing herein contained shall alter or take away or lessen the effect of any payment of any principal or interest made by any person whatsoever

Proviso for the case joint contractors. Provided also that in actions to be commenced against two or more such joint contractors or executors or administrators if it shall appear at the trial or otherwise that the plaintiff though barred by this or any statute of linitations as to one or more of such joint contractors or executors or administrators :;hall nevertheless be entitled to recover against any other or ethers of the defendants by virtue of a new acknowledgment or promise or otherwise judgment may be given and costs allowed for the plaintiff as to such defendant or defendants against whom he shall recover and for the other defendant or defendants against the plaintifT.

This section follows s. I of the Statute of Frauds Amendment Act. 182K. 9 Geo. 4. c. 14.

This section applies to a simple contract debt set up by way of set-orr, s. 15.

As to limitation of actions where an acknowledgment or part payment has been made, see Limitation Act of 1960, S5. 28 et scq., title Ul\llTATION.

Sec c:,pecially ibid .. s. 29 (requirement of writing and signature).

In ca-es of debt within the Act the cause of action may be rev lved by a fresh promise to pay, so that time begins to run afresh from the date of the promise. The "fresh cause of action" theory seems to have been (;) ploded in Spcllcer v. Hcmll1crde, [1922] 2 A.C. 507. Such a promise may be inferred from (1) a written acknowledgment of the debt signed by the debtor or his authorised agent; or (2) part payment of the debt or payment of interest thereon by the debtor or his agent to the creditor or hi:; agent (but to no one else: see Stamford, Spalding and Boston Bankillg Co. v. Smith, I I 8921 1 Q.B. 765). A document containing an unconditional acknowledgment of the d'.:bt and containing nothing to exclude the implied promise arising by law from such unconditional acknowledgment. is a suffIcient acknowledgment. Hephfl/'ll v. Mc/)onllel/ (1918), 25 C.L.R. 199; Bllcknell v. ComlJlcrcial Bw!/-ing Co. of Sydlley Ltd. (1937), 58 C.L.R. 155. Where a debtor acknowledged indebtedness for a certain sum of money lent to him, and such acknowledgment ,:ould only refer to the claim in question, which, however, was not money lent but might be so described by a layman, the acknowledgment was held to be sufficient, Cohen v. Cohen (1929), 42 C.L.R. 91. Cf. Ward v. Tihhatt.l', I 193fi] 2 All E. R. 656.

Where joint debtors gave to the creditor a joint and severa bond to seCllfe the advances already made and future advances on the joint account, it was held that the debts on the advances and the bond were distinct, and that partial repayments of the advances did not constitute acknowledgments of the indebtedness on the bond, Deane v. City Bank of Sydney (1918), 25 C.L.R. 215.

As to sufficiency of acknowledgment, see Trustec ill Bankruptcy of Bolt'l'illg-HalliJury v. Bowring-Hanbury, [1942] 1 All E.R. 516; [1943] 1 A.ll E.R. 48.

In Jones v. Bellgrove Propertics Ltd., [1949] 2 K.B. 700; 65 T.L.R. 166, 451; [1949] 2 All E.R. 198, the Court of Appeal held that a balar,ce-sheet of the respondent company showing a specified sum to be due "to sundry creditors," signed by chartered accountants, agents of the company, and by two of the directors, and presented to the shareholders at an annual general meet·ng. was an acknowledgment in writing within the meaning of s. 24 (1) of the Limitation Act, 1939, (Imperial).


Where there is an oral agreement for new consideration to pay an old debt, it is not necessary to rely on a written acknowledgment to pay the old debt under this section. See Executor, Trustee, and Agency Co. of South Australia Ltd. v. Thompson (1919), 27 C.L.R. 162.

See also 24 Halsbury's Laws of England, 3rd ed., pp. 297 ('t seq.; 32 English and Empire Digest.

10. Provisions of the preceding section extended to acknowledgments by agents. 19 & 20 Vic. c. 97, s. 13. In reference to the provisions of the next preceding section and of the fourteenth section of this Act an acknowledgment or promise made or contained by or in a writing signed by an agent of the party chargeable thereby duly authorised to make such acknowledgment or promise shall have the same effect as if such writing had been signed by such party himself.

This section follows s. 13 of the Mercantile Law Amendment Act, 1856, 19 & 20 Vic. c. 97.

11. Indorsements of payments. 9 Geo. 4, c. 14, s. 3. No indorsement or memorandum of any payment written or made upon any promissory note bill of exchange or other writing by or on the behalf of the party to whom such payment shall be made shall be deemed sufficient proof of such payment so as to take the case out of the operation of this or any statute of limitations.

This section follows s. 3 of the Statute of Frauds Amendment Act, 1828, 9 Geo. 4, c. 14.

"Other writing" in this section means a writing containing the contract by which the party is to be bound, Bradley v. James (1853), 13 C.B. 822; and, therefore, the section does not prevent the application of the common principle of the law of evidence that entries of payment made by deceased persons before the statutory period has expired in account books or in any other way than upon the note or instrument creating the contract are admissible as declarations against interest ibid.

12. Confirmation of promises made by infants. 9 Geo. 4, c. 14, s. 5. No action shall be maintained whercby to charge any person upon any promise made after full age to pay any debt contracted during infancy or upon any ratification after full age of any promise or simple contract made during infancy unless such promise or ratification shall be made by some writing signed by the party to be charged therewith.


The contract of an infant is voidable at his option but binding on the other party, Edwards v. Carter, [1893] A.C. 360; Rain v. Fullerton (1900), 21 L.R.(N.S.W.) (Eq.) 311; Sellin v. Scott (1901), 1 S.R.(N.S.W.) (Eq.) 64, except in the case of contracts for necessaries and certain contracts for the benefit of the infant, which are binding on the infant. See Anson on Contracts (16th ed.), p. 136; Hamilton v. Lethbridge (1912), 14 C.L.R. 236.

The provisions of the Infants Relief Act, 1874, 37 & 38 Vic, c. 62, which rendered certain important classes of infants' contracts void, have not been adopted in Queensland. Certain of the contracts voidable by an infant were binding upon him until he repUdiated them either during infancy or within a reasonable time after attaining his majorty, Rain v. Fullerton, supra; Sellin v. Scott, supra; Hamilton v. Letlzhridge, supra; and others were not binding on him unless ratified by him within a reasonable time after becoming of age. See ihid. The section printed above relates to contracts of this latter type. See also the Preliminary Note to the title CHILDREN, Vol. 3.

As to cases of a new contract made after attaining majority in the terms of a voidable contract made during infancy, see Watson v. Camphell (No.2), [1920] V.L.R. 347; Vickery's Motors Pty Ltd. v. Tarrant, [19241 V.L.R. 195; Cox/zead v. Mullis (1878), 3 C.P.D. 439; Northcote v. Doughty (1879) 4 C.P.D. 385: Gardner v. Wainfllr (1919), 89 L.J. Ch. 98.

218 FRAUDS Vol. 6

Quaere whether a mere allegation in the defence that the defendant was an infant at the time of contracting the debt alleged in the statement of claim is sufficient to raise this section, or whether the section must be pleaded before the defendant can rely on it: See Sultman v. Bond, [1956] St. R. Qd. 180, at p. 183, where Stanley, J., found it unnecessary to decide that matter, but held that a contract for work and labour done and materials supplied for the construction of an intended matrimonial home of an infant engaged to be married was not a contract for necessaries.

13. Representations of character. 9 Geo. 4, c. 14, s. 6. No action shall be brought whereby to charge any person upon or by reason of any representation or assurance made or given concerning or relating to the character conduct credit ability trade or dealings of any other person to the intent or purpose that such other person may obtain credit money or goods thereupon unless such representation or assurance be made in writing signed by the party to be charged therewith.


The section applies to fraudulent representations only, Belm v. Kemble (1859), 7 C.B.N.S. 260; Banbllry v. Bank of Montreal, [1918] A.C. 626; [1918-9] All E.R. Rep. 1. Where information is asked of a banker concerning a customer's financial position, he need not inquire elsewhere as to the solvency or otherwise of the customer, or do anything more than answer the question put to him honestly from what he knows from the materials before him, Parsons v. Barclay and Co. Ltd. and Goddard (1910), 103 L.T. 196; [1908-10] AlI E.R. Rep. 429. The representation may be partly verbal and partly in writing providing the plaintiff was substantialIy induced by the written representation to give the credit, Tatton v. Wade (1856), 18 C.B. 371. The word "person" includes a corporation, Banbury v. Bank of Montreal, supra. Cf. Acts Interpretation Acts, 1954 to 1962, s. 36, title ACTS OF PARLIAMENT, Vo!. 1, p. 97. The representation by a partner as to the credit of his firm is one as to the credit "of another person" within the meaning of the section, Devallx v. Steinkeller (1839), 6 Bing. N.C. 84. The following are within the section: A representation made in order that the party making the representation may obtain a benefit from the credit allowed to the third party, Pearsall v. Seligmall (1883), 48 L.T. 842; representations as to ability to pay, Swan/! v. Phillips (1838), 8 Ad. & El. 457.

In order to maintain an action the false representation as to the credit of another person must be signed by the person making it, and not by an agent, Williams v. Mason (1873),28 L.T. 232. In Swift v. Jewsbury (1874), L.R. 9 Q.B. 301, and Hirst v. West Riding Union Banking Co., [1901] 2 K.B. 560; [1900-3] AlI E.R. Rep. 782, a banking corporation was held not liable for a written misrepresentation made by one of its managers.

For cases generally, see 26 English and Empire Digest, (Rp!.) p. 31.

14. Memorandums exempted from stamps. 9 Geo. 4, c. 14, s. 8. No memorandum or other writing made necessary by the ninth tenth twelfth and thirteenth sections of this Act shall be deemed to be an agreement within the meaning of any statute relating to the duties of stamps.


Stamp duties are imposed by the Stamp Acts, 1894 to 1964, title STAMP DUTIES.

15. Simple contract debts alleged by way of set-off. 9 Geo. 4, c. 14, s. 4. This and every statute of frauds or limitations shall be deemed and taken to apply to the case of any debt on simple contract alleged by way of set-off on the part of any defendant either by plea notice or otherwise.


This section follows s. 4 of the Statute of Frauds Amendment Act, 1828, 9 Geo. 4, c. 14, 4 Halsbury's Statutes of England, 2nd ed., p. 659.

16-28. (Repealed.) Repealed by Limitation Act of 1960, 9 Eliz. 2 No.7, s. 7 and Schedule, title

LIMITATION.

COMMENCEMENT AND SHORT TITLE

29. Commencement of Act. Short title. This Act shall commence on the thirty-first day of December one thousand eight hundred and sixty-seven and may be referred to as the "Statute of Frauds and Limitations of 1867."

As to the law prior to the commencement of this Act, see the Preliminary Note, p. 205, ante.