Formalities - Part Performance

Question 1

McBride v Sandland (1918) 25 CLR 69

Answer 1

Elements of Part Performance:

1. the act must be unequivocally referrable to the promise.
2. The acts must have been allowed to be done by the parties in unequivocal pursuit of the agreement.
3. The acts must be done by the parties.
4. There must be a completed agreement.
5. The act was done under the terms of the agreement by force of that agreement.

Question 2

Regent v Millett (1976) 133 CLR 679

Answer 2

Agreement was oral and not reduced to writing.
Milletts moved in, started paying the mortgage, undertook substantial repairs on house.
When Regents refused to transfer the house, the Milletts brought action for specific performance of the oral agreement.

Acts relied upon as part performance ‘must unequivocally, and in their own nature, referable to some such agreement as that alleged’.

Compare with McBride v Sanderland

Question 3

Ogilve v Ryan [1976] 2 NSWLR 502

Answer 3

The acts done by Ryan were not unequivocally in the pursuit of the promise to have the house transferred to them. There was an element of love and care for Ogilve that prevented the acts from being unequivocal.

The remedy here would probably lie in equity.