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Case Notes 149

STEADMAN v. STEADMAN1
Vendor and PurchaserSpecific performance-Part performance of oral contract
--Compromise agreement between husband and wife-Several terms-Whether
suficient part performance-Law of Property Act 1925 (Eng.), section 40.
Since the Statute of Frauds 1677 (Imp.), section 4, came into operation, an oral
contract for the sale or other disposition of land or any interest in land has been
unenforceable at law. That statute was passed, according to the preamble, to prevent
'many fraudulent practices, which are commonly endeavoured to be upheld by
perjury and subornation of perjury; . . .' It was thought that the requirement of
writing would prevent people being wrongfully deprived of their land by a contrived
'contract'. Section 4 is now embodied in the Law of Property Act 1925 (Eng.),
section 40; in Victoria, section 126 of the Instruments Act 1958 contains a similar
provision.
Soon, however, it was discovered that some people were using the requirement
of writing as a means of avoiding their obligations under oral contracts for the
disposition of an interest in land, particularly where the other party to the contract
had performed some or all of his obligations. The Court of Chancery developed
the doctrine of part performance so that in such a situation the statute itself would
not be able to be used as a means of unconscionable dealing. Under the doctrine,
'the defendant is really "charged" upon the equities resulting from the acts done in
execution of the contract, and not (within the meaning of the statute) upon the
contract itself .'2
In Steadman v . Steadman, the facts are somewhat complex. Mr. and Mrs. S
had been divorced. They were negotiating a settlement of the wife's claim for an
order that the jointly-owned matrimonial home be sold. At the time of these
negotiations there existed against Mr. S two maintenance orders, one each for his
wife and child, and he was £194 in arrears. A compromise agreement was reached,
which has been termed an 'oral package deal', and under which (i) the maintenance
order for the wife was to be discharged, (ii) the maintenance order for the child
was to continue, (iii) the arrears of maintenance were to be remitted except as to
£100, and (iv) the wife was to surrender to Mr. S her interest in the home for
£ 1500. The justices hearing the wife's claim were told of this agreement, and imple-
mented those of its terms which related to maintenance, which alone were within
their jurisdiction. Mr. S's solicitors then drew up a transfer which was delivered to
Mrs. S, Mr. S having previously arranged for payment of the £1500 to be made,
but she refused to sign it. She reinstituted her proceedings for the sale of the house.
Mr. S pleaded the agreement, but Mrs. S pleaded that it was unenforceable. Mr. S.
claimed the following as acts of part performance: (i) the announcement of the
terms of the agreement to the justices, by virtue of which Mr. S forebore from
seeking terms more favourable to himself; (ii) the payment of £ 100 of arrears;
and (iii) the preparation and dispatch to Mrs. S of the transfer.
The House of Lordd accepted that there had been sufficient part performance by
Mr. S, but not before lengthy dissertations as to the requirements for such sufficiency.
Attempts have often been made to restrict the doctrine of part performance, and,

1119741 3 W.L.R. 56. House of Lords; Lord Reid, Lord Morris of Borth-y-Gest,
Viscount Dilhorne, Lord Simon of Glaisdale and Lord Salmon.
Per the Earl of Selbourne L.C. in Maddison v. Alderson (1883), 8 App. Cas.
467, 475.
3 Lord Morris of Borih-y-Gest dissenting.
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150 Melbourne Universiiy Law Review WOL. 10, MAY '751

as Lord Simon of Glaisdale note+ these attempts would seem frequendy to have
resulted from a mistaken consideration of the doctrine as a rule of evidence rather
than of substantive law. Those who see an act of pat%performance as an alternative
means to that of writing of proving the cantract see the doctrine as providing a
means of avoiding the statute, and so naturally would want it severely restricted.
But as was shown above, it is the equities which arise from the act of part per-
formance which form the basis of the doctrine. To ask what will constitute a
sufficient act of part performance is really to ask when an act will give rise to such
equities. Indeed, Lord Reid emphasizes that when looking at the various tests for
sufficiency of an act of part performance, 'the equitable nature of the remedy must
be kept in rnind.'B So regarded, the doctrine does not need deliberately to be
restricted.
The starting point for the House of Lords in its inquiry was the classic statement
of the Earl of Selborne L.C. in Maddison v. Alderson:-6
All the authorities shew that the a d s relied upon as part performance must be
unequivocally, and in their own nature, referable to some such agreement as
that alleged: . . .
This statement itself prompts further investigation:--
( 1 ) 'Unequivocally'. It seems clear that the alleged acts of part performance need
themselves to be proved only on the balance of probabilities. Furthermore, it would
seem now that, at least in England, it is sufficient if these. acts once proved show it
to be more Likely than not that they were done in the performance of some contract
with the other party.7
Somewhat different phraseology has been used in Victoria. It has been said that
the alleged acts must point 'plainly, and not merely in an equivocal fashion'? or
must indicate 'a clear reference according to normal probabilities* to a contract
between the parties. These phrases, however, are entirely consistent with a re-
quirement of proof on the balance of probabilities, which is the general standard of
proof required in civil proceedings, and is proof 'according to normal probabilities'.
If the alleged acts of part performance point to a contract in no more than 'an
equivocal fashion', then the party alleging the acts has not discharged his burden
of proof to any of the possible degrees, not even proof on the balance of probabil-
ities, which is the degree most favourable to him. Therefore, if the acts on the
balance of probabilities point to a contract, they can indeed be said to be pointing
'not merely in an equivocal fashion'. It is suggested, therefore, that a Victorian
court today would follow the clear statement of their Lordships in the present case
as to the standard of proof required.
(2) 'In their own nature'. This phrase means simply that oral testimony is not
admissible to show the nexus between the alleged acts and the alleged contract. The
acts must show that themselves. But the phrase does not mean that where there is

4 [I9741 3 W.L.R.56,77. See also per Lord Reid at p. 61.

5 lbid. 60.
6 (1883), 8 App. Cas. 467, 479.
?Per Lord Reid at p. 61, and Lord Simon of Glaisdale at pp. 81-2. Viscount
Dilhorne believed that the acts alleged need only 'point' to some such contract as
that alleged (p. 75); and Lord Morris of Borth-y-Gest merely said that some such
contract must be 'a reasonable explanation' of the alleged acts (p. 66). Lord Salmon
did not consider the point.
8 Francis v. Francis, [I9521 V.L.R. 321, 340, per Smith J.
glbid. 322, per Sholl J.; Commonwealth Oil Refineries Ltd. v Hollins, [I9561
V.L.R. 169, 179. See also Voumard, Sale of Land in Victoria (2nd ed. 1965) 90.
Case Notes

more than one alleged aat they must all be looked at individually with no reference
to any of the others.10
(3) 'Some such agreement as that alleged'. Clearly, the alleged acts of part per-
formance do not have to point to the precise terms of the alleged contract. That
has been described as a 'long exploded idea'.ll It seems that it will be sufficient in
England if the acts, probably only on the balance of probabilities,lz 'prove the
existence of some contract fietween the plaintiff and the defendant], and are con-
sistent with the contract alleged', as Upjohn L.J. noted in Kingswood Estate Co. Ltd.
v. Anderson.13
The Victorian authorities are of little assistance on this question. In Francis v.
Francis,l4 Smith J. said that the acts must point to the existence of an agreement
between the parties 'falling within the general class to which the agreement alleged
belongs'ls Sholl J. in that case referred merely to 'a contract between the parties',16
as did the Court in Commonwealth Oil Refineries Ltd. v. Hollins.17 It seems likely
that in Victoria the phraseology of Upjohn L.J. in Kingswood Estate Co. Ltd. V .
Andersonls will be adopted.
(4) Whether the act of part performance must indicate that term of the agree-
ment which deals with the disposition of an interest in land. There is some auth-
ority which appears to hold that an act of part performance will be insufficient
unless it points to that term of the agreement which concerns the disposition of an
interest in Iand.19 The House of Lords in the present case was divided on the
issue.m
It will be noted, however, that those cases in which the court has held that thb
acts of part performance must point to the term concerning the disposition of an
interest in land almost always are cases dealing with single-term contracts. And in
most cases of single-term contracts dealing with the disposition of an interest in
land, where the acts of part performance satisfy the other requirements for s a c -
iency, they will also point to the disposition of such an interest.
In cases of multi-term contracts like the present one, and particularly where those

loper Lord Simon of Glaisdale at p. 82 ('The acts may throw light on each
other; and there is no reason to exclude light'); per Lord Salmon at p. 89. Viscount
Dilhorne assumes the point, at p. 72. Contra: Lord Morris of Borth-y-Gest, at p. 67.
Lord Reid did not find it necessary to consider the point.
11 Kingswood Estate Co. Lid. v. Anderson, [I9631 2 Q.B. 169, 189, per Upjohn
L.J.
12 See the discussion of 'unequivocally', supra.
13 [I9631 2 Q.B. 169, 189. See also per Lord Simon of Glaisdale at [I9741 3
W.L.R. 56. 80: uer Viscount Dilhorne at D. 72: and Der Lord Reid at D. 61. Lord
Morris of . B O ~ - y - ~ e(at
s t p. 65) and L r d ~ a l m o i(at p. 86) beli&e that the
alleged acts must point to a contract for the disposition of an interest in land, as to
which see the discussion infra, and also Cooney v. Burns (1922), 30 C.L.R. 216.
14 119521 V.L.R. 321.
15 Zbid. 340.
16 -Ihid. - - -.
- - -- 332
17 119561 V.L.R. 169, 179.
18 [I9631 2 Q.B. 169, 189.
19See Maddison v. Alderson 11883). 8 ADD. Cas. 467. es~eciallv Der b r d
Blackburn at p. 489; Cooney v. ' ~ u r n s (19223:
' 30 C.L.R.'216. SeeSalk &ell's
Principles of Equity (27th ed. 1973) 587; Voumard, op. cit. 90.
zoLord Morris of Borth-y-Gest (p. 66) and Lord Salmon (p. 86) believed that
the acts must point to the disposition of an interest in land. Contra: Lord Reid (pp.
60-1) and Viscount Dilhorne (pp. 72-3). Lord Simon of Glaisdale discussed the
point (p. 81) but did not find it necessary to reach a conclusion. Note that the
headnote in the Weekly Lmu Reports would appear to be unsound on this point.
152 Melbourne University Law Review [VOL.10, M A Y '751

terms are not severable, the acts do not have to point to that term which concerns
the disposition of an interest in land for it to become unconscionable for the defend-
ant to plead the statute. The acts will still give rise to the equities upon which a
defendant would be charged. It is suggested, therefore, bearing in mind the equitable
basis of the doctrine of part performance, that it cannot be laid down as a definite
rule that ithe acts must always point to the disposition of an interest in land.
Furthermore, there is some anthority to suggest that such a rule has not always been
laid down in the past.21
(5) Whether the payment of money can ever constitute sufficient part performance.
It has been said that the payment of money can never constitute sufficient part
performance.= In the cases where this has been said, however, the payment of
money has always been an equivocal act. In fact, the payment of money should be
no more than an illustration of the general principle, so that where admissible
evidence (such as other acts of part performance) shows that the payment was
not equivocal, it should be regarded as a sufficient act of part performance provided
that the other requirements are satisfied.23 In the present case, the payment of f 100
of arrears was not an equivocal act when looked at in the circumstances, and so it
was held to be sufficient part performance.%
(6) Preparatory acts. It is well established that an act which is merely preparatory
to the performance of a contract cannot be an act of part performance.% The pre-
paration and sending to Mrs. S of the transfer, however, was not merely preparatory
to the performance of the contract, as it was one of the obligations imposed on Mr.
S by the agreement.26
(7) Whether spoken words can ever constitute sufficient part performance. Their
Lordships were divided as to whether the act of telling the justices of the agree-
ment could constitute part performance.2' But the view of Lord Simon of Glaisdale
would appear, with respect, to be persuasively sound. He notes that oral evidence
is inadmissible 'to establish that the acts relied on were in performance of a con-
tract.'a Nevertheless, proof of acts themselves is almost always made by oral
testimony, and there is nothing to prevent words being an act of part performance
in themselves if they satisfy the other requirements.29
Conclusion. It is thought that the present position in Victoria of the law relating

=See Brough v . Nettleton, 119211 2 Ch. 25; Wakeham v. Mackenzie, 119681 1

W.L.R. 1175. See also per Viscount Diihorne at [I9741 3 W.L.R. 56, 72, and Lord
Simon of Glaisdale at p. 81.
22See Maddison v. Alderson (1883), 8 App. Cas. 467; Jones v . Peters 119481
V.L.R. 331; Harlow v. Mitchell, [I9701 Q.W.N. 68.
*Per Lord Simon of Glaisdale at p. 83; Lord Reid at p. 60; Lord Salmon at
p. 89; and Viscount Dilhorne at p. 72. Contra: Lord Morris of Borth-y-Gest, who
believed that no evidence which would show the payment to be unequivocal would
ever be admissible (p. 67).
24 Ibid.
25 Maddison v. Alderson (1883), 8 App. Cas. 467; Cooney v . Burns (1922), 30
C.L.R. 216; Francis V . Francis, 119521 V.L.R. 321.
It is the 'universal custom' for a deed of transfer to be prepared by the trans-
feree or his solicitor: per Lord Reid at p. 60. See also per Viscount Dilhorne at
p. 72; Lord Simon of Glaisdale at p. 79; and Lord Salmon at p. 90. Contra: Lord
Morris of Borth-y-Gest at p. 67.
27 Lord Reid thought it 'very doubtful' (p. 60), and Lord Morris of Borth-y-Gest
also thought it insufficient. Viscount Dilhorne (p. 72) and Lord Simon of Glaisdale
(p. 82) .felt that it did constitute an act of part performance. Lord Salmon expressed
no oplnlon.
28 119741 3 W.L.R. 56, 82.
29 His Lordship cites Ratten v. The Queen, 119721 A.C. 378, 387, per Lord
Wilberforce; and Teper v. The Queen, [I9521 A.C. 480, 487, per Lord Normand.
Case Notes 153

to part performance may be summed up as follows.~Where the defendant to an

action for specific performance pleads that the contract is unenforceable, and where
the plaintiff alleges acts of part performance, the latter must prove those acts on
the balance of probabilities. These acts, considered together and in the circumstances,
must of themselves show that it is more likely than not that they were done in
performance of and in reliance on (and not merely preparatory to) some contract
with the defendant, and they must be consistent with the actual contract alleged.
If they do this, the acts will give rise to an equity in the plaintiff which makes it
unconscionable for the defendant to rely on the statute. The acts need not necessarily
point to that term of the agreement which concerns the disposition of an interest in
land; spoken words may constitute an act of part performance; and it is of no
especial significance that an alleged act of part performance is the payment of money,
except that in most cases such an act will be equivocal and will not satisfy the
requirements above.
J. P. FIELD

30 For a statement of those clearly settled parts of the Victorian law relating to
part performance which are not touched by this note, see Voumard, op. cit. 89-96.