Contracts Requiring Writing

In New South Wales certain contracts need to be in writing or evidenced in writing as a result of legislation that was derived from Statute of Frauds 1677 (Imp) otherwise there could be difficulties in enforcing it.

For instance s 54 A (1) of the Conveyancing Act 1919 (NSW) says that no proceedings can be brought upon contracts for the sale of land unless the agreement is in writing and signed by the parties.

Where there is non-compliance with the requirement for writing it could potentially have the effect that the promise is unenforceable as opposed to being void. In some cases that may not be the end of the story as there exists a range of potential remedies.

Potential Scenarios - Contracts in Writing

  • If you as purchaser agrees with the vendor to buy a property but the whole arrangement is oral;
  • When speaking with a real estate agent over the phone you agree to vary the contract but nothing was placed in writing;
  • In reliance on a verbal contract to buy real estate you moved to another city and engaged in other acts of part performance.

Important Quotes in Cases Where Writing is Needed

In the present case the giving and taking of possession by itself was sufficient part performance of the contract and it is therefore unnecessary to consider whether the other acts relied upon would also, either alone or together, amount to part performance. The change of possession of land has been described as "the act of part performance par excellence"—Williams: The Statute of Frauds, Section IV, p. 256. Of course, it may be proved that the taking of possession was referable to some other authority than the contract alleged. That was the situation in McBride v Sandland [8] . However, in the present case the circumstances under which possession was given indicate contract, to echo the words in McBride v Sandland [8] and the possession was unequivocally referable to some such contract as that alleged. The taking of possession was pursuant to the contract. It is true that the contract did not require the respondents to take possession, but if it were necessary that the acts of part performance should have been done in compliance with a requirement of the contract, the utility of the equitable doctrine would be reduced to vanishing point, and many cases which have proceeded on the opposite view would have been wrongly decided. The Judicial Committee in White v Neaylon [9] indeed appears to have held that the effecting of improvements on property which were neither required nor permitted by the contract may be acts of part performance; but however that may be, it is clear that if a vendor permits a purchaser to take possession to which a contract of sale entitles him, the giving and taking of that possession will amount to part performance notwithstanding that under the contract the purchaser was entitled rather than bound to take possession. - Regent v Millett [1976] HCA 40

Let Us Help You

  • determine whether or not the contract (or the variation to it) needed to be in writing;
  • consider the implications of non-compliance with any requirement for writing;
  • what form of remedy might be available.

* This content does not purport to give legal advice. Readers must obtain their own legal advice, that applies to the particular circumstances of their case, before taking any action at all.