JC Williamson Ltd v Lukey & Mulholland
(1931) 45 CLR 282
Williamson (lessee of theatre) agreed to grant Lukey and Mulholland (L&M) an exclusive right to sell confectionery in the theatre. Legislation required that a note or memo record th agreement - none was made. L & M acted pursuant to the agreement but the agreement was subsequently repudiated by Williamson. L&M then sought equitable remedies designed to enforce the agreement. Williamson relied on non-compliance with formalities. L&M were successful in their claim of ‘part performance’ at first instance - Williamson appealed.
Noted that the basis of the doctrine of part performance was to prevent the Statute of Frauds (and equivalents) from being ‘used as an instrument of fraud’. This has been criticised on the basis that it undermines the legislation. However, the basis of the claim of part performance is not the contract itself but (as expressed by the Earl of Selborne) the ‘equities resulting from the acts done in execution of the contract’. If such a claim was excluded, ‘injustice of a kind which the statute cannot be thought to have had in contemplation would follow.’
In this case, however, the doctrine could not apply because specific performance was not available as a remedy. Consequently, Williamson’s appeal succeeded