McBride v Sandland
(1918) 25 CLR 69
McBride promised to allow his daughter (Sandland) and her husband to occupy farming property during his lifetime and then to transfer it to them when he died. They gave promises in exchange. The Sandlands' occupied the land for a number of years and following the death of her husband, Mrs Sandland continued to occupy it under a lease from from McBride. Upon the expiration of that lease, in 1916, McBride claimed possession of the land. Sandland refused. At first instance the Court held that she had an equitable interest in the land; McBride appealed.
In order to prove part performance in this case it is necessary to prove:
(1) 'The act relied on must be unequivocally and in its own nature referable to "some such agreement as that alleged." That is, it must be such as could be done with no other view than to perform such an agreement.'
(2) Some such agreement means ‘some contract of the general nature of that alleged.’
(3) The ‘circumstances in which the "act" was done must be considered’ to determine ‘whether it refers unequivocally to such an agreement as is alleged.’ Bare possession of property, for example, is not sufficient (it is not necessarily referable to a contract, but may come about as a result of a temporary permission or even trespass!). But if, for example, possession is given in circumstances suggesting contract, then that may suffice.
(4) The act must have been done ‘by the party relying on it on the faith of the agreement’ and the other party must have allowed it to be done on that basis (or there would be no fraud – no moral turpitude – justifying equity’s intervention.)
(5) The act ‘must be done by a party to the agreement.’
Once these are proved, terms may be established and, once they are, it must also be shown that:
(6) ‘there was a completed agreement.’
(7) ‘the act was done under the terms of that agreement by force of that agreement.’
In this case the promise in 1895 did not give rise to a contract as alleged by Sandland and there were no acts of part performance.