53(nv.s. 3) 5-8. 10S On appeal to the High Court, v fa- Held,

Ww theatre for five years - Contract not to be performed within one year- Mrcsourne, Frauds - Supreme Court Act 1928 (Vict.) (No. 3783), sec. 62 (4) - Ins Mar. 2,35 Act 1928 (Vict) (No. 3706), sec. 128. April 29,

'The lessees of a theatre agreed with a confectioner to give him an €

; right to sell sweets and confectionery in the theatre and its precinets d

Hoan the continuance of a lease of a shop which the confectioner took from

MeTiernan JJ. owner of the theatre for a period of more than one year. The agreemettt wa

Bonol not in writing, and there was no note or memorandum in writing the

42(n.s0)S-R. F443 The confectioner exercised his rights under the licence for some time,

wn. 56 subsequently the lessees of the theatre repudiated the agreement and re

the licence. In an action by the confectioner for an injunction and

S3fasw)o%.G the leamed trial Judge awarded damages in lieu of granting an 53(nv.s. 3) 5-8. 10S On appeal to the High Court,

v fa- Held, (1) that the contract could not be performed within one year PAHETe. 1° she making thereof ; (2) that the contract was not one which equity vA = "92-<42. enforce by specific performance ; (3) that an injunction could not have 34 8. granted on the ground of part performance to restrain revocation of the li

or the admission of others to sell sweets, and (4) that, therefore, dam

Cireumstances in which a Court of equity will grant relief in the a contract of which there has been part performance, considered.

Decision of the Supreme Court of Victoria (Lowe J.): Lukey v. Royal Pty, Ltd., (1931) V.L.R. 73, reversed. f

The plaintiffs, John Henry Lukey and William Gavin Mulholland, brought an action against the Theatre Royal Pty. Ltd., J.C. William- son Ltd. and Ernest Hillier (Victoria) Pty. Ltd., for breach of an agreement, alleging that in October 1926 it was orally agreed between the plaintifis and the defendant, the Theatre Royal Pty. Ltd. or J.C. Williamson Ltd., substantially, that the plaintiffs should, with the consent of one, Divoli, take over the lease of a sweets shop adjacent to the Theatre Royal in Bourke Street, Melbourne, for the residue of the term thereof, and that at the expiration of such term the defendant would let and the plaintifis would take the said shop for a term of five years from 5th July 1927 at a rental of £40 per week, and that 'in consideration thereof the plaintiffs should have until the expiration of the lease for five years the exclusive right to sell sweets and confectionery in the Theatre Royal and the precincts thereof. The plaintiffs, in accordance with such agreement, took over the residue of the lease from Divoli and purchased the stock and fittings of the shop from him and entered into possession of the shop, and executed a lease of the shop for a term of five years from 5th July 1927 at the rental aforesaid, and purchased the stock and fittings of one Friend, who had previously exercised the right of selling sweets in the theatre and exercised their right of selling Sweets and confectionery in the theatre and in the precincts thereof under their licence. On Ist September 1930 the defendant repudiated the right of the plaintiff exclusively to sell sweets in the theatre and in the precincts thereof. It was also alleged that in breach of the agreement made with the plaintiffs the Theatre Royal Pty. Ltd.

or, alternatively, J. C. Williamson Ltd. had granted the exclusive tight of selling sweets and confectionery in the theatre and the

precincts thereof to the defendant Ernest Hillier (Victoria) Pty. Ltd. which, unless restrained, would exercise such right. The plaintiff claimed, in substance, (1) a declaration that the plaintiffs were entitled to the exclusive right of selling sweets and confectionery in the theatre and in the precincts thereof ; (2) specific performance of the said agreement ; (3) an injunction to restrain the defendant from preventing the plaintiffs from exercising the exclusive right aforesaid, and to restrain the defendant from granting such exclusive right to

H.C. or A. the defendant Ernest Hillier (Victoria) Pty. Ltd. or to any 5 persons ; (4) an injunction against Ernest Hillier (Victoria) J.C. (5) damages.

Vea The defendant (inter alia), after denying the agreement al Loney Pleaded that there was no note or memorandum in writing of the

axp Mu.- agreement alleged as required by sec. 128 of the Instruments Act

emai (Vict.); and that it would be inequitable to grant the relief on the ground that if the exclusive right alleged by the plz had been granted it was, in effect, subject to the defendant the supervision of the attire and uniform worn by the employe of the defendant in the theatre and of the conduct of such employe in the theatre, and of the quality of the sweets and confer : supplied by the plaintiffs in the theatre, and also subject to terms that the plaintiffs would observe and conform to all the and regulations made by the defendant, and would, when required by the defendant, discharge any employee who was guilty of cond prejudicial to the proper management of the theatre or who to observe any of the rules in force for carrying on the th and on the further ground that the plaintiffs had been

As to the plea of the Statute of Frauds (sec. 128 of the I Act 1928 (Vict.)), the plaintiff's replied that the agreement had| partly performed.

The learned trial Judge, Lowe J., found that the alleged by the plaintiffs had been made ; that it was an "ag

making thereof' within the meaning of sec. 128 of the Ins Act 1928; but that there was part performance of the a and his Honor awarded £2,250 damages to the plaintiffs in granting an injunction: Lukey v. Theatre Royal Pty. Ltd. (1).

From that decision the defendant J. C. Williamson Ltd. appealed to the High Court.

Hudson, for the appellant. The point involved is whether th action is barred by reason of non-compliance with the Statue Frauds (sec. 128 of the Instruments Act 1928). The agreement,

reason of the term of five years, came within sec. 128, and the only question is whether it was a contract to which the doctrine of part performance applies, and whether, if it is such a contract, there was sufficient part performance to enable the Court to grant the relief claimed. The damages were awarded under sec. 62 (4) of the Supreme Court Act 1928, which introduced Lord Cairns' Act into Victoria. The learned trial Judge held that it was a case for specific performance and awarded damages against the defendant in lieu thereof. There are two main propositions : - First, even accepting the Judge's analysis of this agreement as simply a licence and a contract not to revoke it for five years simpliciter, that is not such an agreement as a Court of equity would specifically enforce. The parties would be left to their strict legal rights, that of the defendant to revoke his licence at will and the right of the plaintiff to bring an action in a common law Court for breach of contract. Secondly, on the proper interpretation of this agreement the defendant's obligations were dependent upon performance by the plaintiffs of obligations to perform continuous acts throughout the term, namely, through themselves or their servants to provide for the supply of confectionery to patrons of the theatre, and this element brought it within the class of which a Court of equity would not decree relief in the nature of specific performance (Lavery v. Pursell (1) ). Specific performance is really the basis for the order for damages in this case. Damages could only be awarded in substitution for specific performance. In this case specific performance would not have been decreed, (1) because the defendant was not in a position to carry out the contract, and there- fore to decree specific performance would be to decree something which J. C. Williamson Ltd. would not have power to carry out ; (2) because the rights of third parties to whom the licence to sell sweets had subsequently been granted had intervened; and (3) even if the doctrine of part performance were applicable the acts relied upon in this case were not sufficient to constitute that part performance. As to the first proposition: - With the limited interpretation the learned trial Judge put upon this contract there was no equity created to attract the jurisdiction of a Court of

chancery. There was no interest in property and nothing in nature of a proprietary right which the Court could be called u to protect. It was a licence revocable at the will of the defe i and though the defendant would thereby render itself liable | damages in law, assuming that there was a memorandum in y there could be no ground for relief in equity by way of s performance or injunction (Frank Warr & Co. v. London Co Council (1)), unless such licence is coupled with an interest (Fi v. Lovelace 2); ; James Jones & Sons Ltd. v. Tankerville Gay (3)).

to grant specific performance is not attracted. The only subj matter of this contract is a licence to go on to the theatre premis or not to be excluded from those premises, and to call upon owner to exclude everybody else from selling. Frogley v. is distinguishable because there it was the right to shoot and takea game that was conferred by the licence. The same observation app to Ah Wye v. Lock (4), which was alicence tomine. Soin James Jo nes & Sons Ltd. v. Tankerville, which was a right to cut and carry away timber. This extends to a proprietary right known to the av that affords ground for the intervention of equity (Rigby y. Connol (5); Young v. Ladies' Imperial Club Ltd. (6); Baird v. Wells In Kerrison v. Smith (8) the true view was that the right of person in the theatre was revocable at will but he had a right f action for damages. Hurst v. Picture Theatres Ltd. (9) is in conf with Wood v. Leadbitter (10).

[Drxon J. referred to Joel v. International Circus and Chi Pair (11).] That case is stronger than the present because there there particular spaces allotted. In Zimbler v. Abrahams (12) it was said that unless there was some interest in land the remedy is one' damages at common law. In Hurst y. Picture Theatres Lid. the decision of Buckley L.J. is open to the objection that a correc

(1) (1904) 1 KB, 713, at p. 717. (7) (1890) 44 Ch. D, 661, at p. 675 (2) (1859) John. 333; 70 E.R. 450. (8) (1897) 2 Q.B. 445. (3) (1909) 2 Ch. 440, (9) (1915) 1 REL

2. 3. V.R. (Eq.) 11: (10) (1845) 13 M. & W, 838; 153 EA (5) (1880) 14 Ch. D. 351,

interpretation is not given to the word " grant" or "interest" in H. ©. or A.

the expression "licence coupled with a grant or interest." The ea

cases relied on by the learned trial Judge are distinguishable from C. 5 ite ; Wiu1amson the present case. As to the second proposition: this depends to 'Lr.

a Lukey interpretation of the contract. There were obligations upon ser- a pene vants of the plaintiffs to conform to rules of the defendant and = -

some extent upon the evidence and to some extent upon the

upon the plaintifis to keep up the supply of sweets. [Starke J. referred to Pollard v. Photographic Co. (1).] The only explanation of that case is on the basis of a proprietary tight or on the inadequacy of common law relief. The doctrine of part performance is only applicable when the Court could grant specifie performance in the true sense of the term. Walsh v. Lonsdale (2) does not create a substantive right and does not apply so as to render available in any Court an interest in property unless there is some interest created. The Courts will not intervene to decree the execution of a document (Stocker v. Wedderburn (3) ). As to severability, Maddison v. Alderson (4) shows that unless a Court of equity could decree complete performance of the contract the doctrine of part performance could not be invoked. An injunction would be directed to restraining the defendants from excluding the plaintiffs and from admitting other people. The damages in lieu of such injunction would require to be calculated on this basis. An injunction to restrain the defendants from excluding the plaintiffs from the theatre for five years would not justify the damages awarded. A Court of equity finding an affirma- tive and a negative covenant would not intervene (Ogden v. Fossick (5) ). [Dixon J. referred to Frith v. Frith (6).]

In the present case equity could not grant relief either by injunction or by way of specific performance (Fothergill v. Rowland (7) ; Pakenham Upper Fruit Co. v. Crosby (8) ). The defendant company did not have sufficient title to make a grant of a licence. Part

(1) (1888) 40 Ch. D. 345. 431, 434; 45 E.R. 1249, at pp. 1251, (2) (1882) 21 Ch. D. 1252, (3) (1857) 3K. & J. 393; 69 ER. (6) (1906) A.C. 254, at p. 261.

1162. (7) (1873) L.R. 17 Eq. (4) (1883) 8 App. Cas. 467, at p. 476. (8) (1924) 35 C.L.R. 386, at pp. 399,

H.C.or A. performance is not applicable to a contract which is not

1. performed within one year which is not in or evidenced by

J.C. [Evarr J. referred to Crowley v. O'Sullivan (1).] WILtiaMson

a, Fullagar (with him Robert Menzies K.C.), for the respondents. en a It is not necessary that part performance should be referable to HOLLAND. a, contract for more than a year. If it is referable to some sudl

~~ contract as that sought to be enforced, it is sufficient (Maddison y. Alderson (2); McBride v. Sandland (No. 1} (3); Kewley vy. Ba (4) ). The exercise of a licence for more than a year would be ar act of part performance referable to a contract not to be perform within a year. The acts relied upon as part performance consi of entering into the theatre. The acts have to be looked at to see if they are referable to some such contract as that a

• Rawlinson v. Ames (5) shows that all the facts have to be g into and everything that was done examined. In the case specific performance of a contract to lease land and part perform of the agreement, where one person is found in possession of belonging to another, it may be inquired how the person into possession, and if it is found that his possession is referal some such contract as that alleged, it can then be shown what contract was. Here the plaintifis were doing certain acts in theatre, and how, it is asked, came they there? The doctrine of p performance applies to all contracts concerning which equity v entertain a suit for its own particular relief (Fry on Specific Perform ance, 6th ed., pp. 283, 287-288, 293 ; Notes in Smith's Leading Casest Peter y. Compton (6)). Injunctions are sometimes referred to as 4 species of specific performance (James Jones & Sons Ltd. y. Tanke (7); Sinclair v. Schildt (8) ). The doctrine of part performan applies where equity would grant relief by way of injunction. ( that view the doctrine covers this case. It is necessary to entirely distinct, cases where equity is perfecting an imperfect g and cases where equity is enforcing a contract as such; the for case would be illustrated by a lease void at law which equity

(2) (1883) 8 App. Cas. 467. a) (1694) 1 Sm, 1.C., 13th ed., at (3) (1918) 25 C.L.R. 69. yp._ 356-357. Ag (4) (913) V-LR412; 35.4. 51, (7) (1909) 2 Ch. 440. a

as an agreement to grant a lease. It may be that that doctrine is H- ©. or A. Jimited to grants and interests in land. In the latter case it would ees enjoin the person committing the breach though that may not J. ©

; a 5 . WILLIAMSON relate to any proprietary right. Equity gave the widest possible 'Lap. meaning to the term " proprietary right " and would have granted pigy

an injunction in this case (Frogley v. Lovelace (1); James Jones plat

& Sons Ltd. v. Tankerville (2) ). In both those cases the Court -

enjoins the person committing the breach 'and not perfecting

an imperfect grant. Wherever equity finds a breach of a negative

covenant it will grant an injunction to restrain a breach (Tipping v.

Eckersley (3), approved in Lord Manners v. Johnson (4)). Doherty

vy. Allman (5) does not qualify that principle, but there there was

not a sufficiently definite negative covenant (Hurst v. Picture

Theatres Lid. (6); Kerrison v. Smith (1); Holmes v. Eastern

Counties Railway Co. (8); Catt v. Tourle (9)). The Court also

interfered by injunction to enforce an exclusive right in the nature

of a negative covenant in Altman v. Royal Aquarium Society (10).

Those are all cases in which equity interfered simply to remedy a

breach of contract without any reference to any question of property

in the strict sense of that word. Equity will enjoin in respect of

the exclusive right attaching to the supply of liquor to a tied house.

This is a contract of which the Court would grant an injunction. [McTiernan J. referred to Wood v. Corrigan (11).]

Hudson, in reply. In Holmes v. Eastern Counties Railway Co.

(8) the agreement was for a fixed and immovable stall on railway premises. The material distinction from the present case is that there there was a proprietary right which would be protected, but where there is a mere licence to go on premises and do acts thereon,

• such right will not be protected in equity. In Altman y. Royal Aquarium Society (10) a lease or the right to the exclusive possession of some proprietary interest was granted between the parties. If

(1) (1859) John. 333; 70 E.R. 450. (7) (1897) 2 Q.B. 445. (2) (1909) 2 Ch, 440. (8) (1857) 3K. & J. 375; 69 E.R, (3) (1855) 2K. & J. 264, at p. 270; 1280, 69 E.R. 779, at p. 782. (9) (1869) L.R. 4 Ch. 654, at pp. 661- » (4) (1875) 1 Ch. D. 673. 662.

(5) (1878) 3 App. Cas. 709. (10) (1876) 3 Ch. D. 228, (6) (1915) 1 K.B. 1. (11) (1928) 28 8.R. (N.S. W.) 492.

you find some proprietary right granted whether by lease, agree

licence to do acts will not attract jurisdiction to the Court and 1 Court will not interfere. Wood v. Corrigan (1) shows that t] Court will not grant relief by injunction except on express negatiy covenants as distinguishable from implied (Pakenham Upper Co. v. Crosby (2) ). The acts here relied upon were not refi to some such contract as that alleged. Such a contract in ref to the present case means a contract not to be performed a year. '

The Acts relied upon must be unequivocally referable t contract not to be performed within a year, and the acts here reli on may be referable to a weekly holding as well as to a for the term alleged (Chaproniere v. Lambert (4)). As to the doctri of part performance applying wherever equity would grant a injunction, see Reeve v. Jennings (5).

Gavan Durry C.J. I agree with the judgment of my brothe Dixon. Z

Srarke J. In this case the learned trial Judge (Lowe J.) four that in or about October 1926 it was orally agreed between tl appellant and the respondents to this appeal that the responde should with the consent of one Divoli take over the lease of a ce shop (which was in fact used for selling sweets) for the residue of the term thereof, and that at the expiration of the term the Royal Pty. Ltd. would let and the respondents would take # shop for a term of five years from 5th July 1927 yielding an¢ paying therefor the clear weekly rental of £40 and that in co1 tion of the respondents taking over the lease and entering into further lease for the said term of five years the respondents have until the expiration of the last-mentioned lease the exe

(1) (1928) 28 SR. NSW.) 492, (3) (1909) 9 C.L.R. 265, at p. 280.

(2) (1924) 35 C.LR., at p. 401. (4) (1917) 2 Ch. 356, at p. 361. (5) (1910) 2 KB. 522.

tight to sell sweets and confectionery in the Theatre Royal, Melbourne, and the precincts thereof. He further found that the respondents were to pay in respect of the "sweet rights" £14 a week when musical comedy was performed in the theatre and £12 a week when drama was performed. Originally, the sweet rights did not permit the respondents to have persons selling sweets in the dress circle and stalls of the theatre, but, as to the stalls at all events, the permission was afterwards conceded. The other obligations of the arrangement as to sweets were not the subject of stipulation, but the parties apparently understood that the "dress deportment and behaviour " of the respondents' employees selling sweets in the theatre were subject to the approval and control of the appellant. The agreement, it will be noticed, provided for two separate things - one the taking over of an existing lease of the shop and entering into a further lease thereof for five years, and the other the tight to sell sweets in the theatre. The respondents took over the existing lease, and by an indenture dated the 13th day of June the Theatre Royal Pty. Ltd. demised the shop to the respondents for a term of five years. Thus the first part of the agreement was

duly carried out. But the lease contains no provisions as to the sweet rights in the theatre. And there is no note or memorandum. relating to those rights. Clearly, the arrangement does not constitute any contract or sale of lands, tenements or hereditaments or any interest in or concerning them within the Statute of Frauds, but Lowe J. held, and in my opinion rightly, that the arrangement does constitute an agreement not to be performed within the space of one year, because upon its face the parties contemplated its perform- ance would extend over a space greater than one year. The respondents, however, proceeded to sell sweets within the theatre, to maintain and add to show-cases, and to pay the appellant the weekly amount for the sweet rights as stipulated. Lowe J. (1) held that these acts, coupled with the taking over of the existing lease and the further lease of the shop, were " unequivocally, and in their own nature, referable to some such agreement as that alleged" by the respondents, or, in other words, that the acts were such as could not have been done with any other view or design than to perform

some such agreement (Maddison v. Alderson (1); Gunter v. L (2) ). To this conclusion I agree, and once the acts go as far as t] "they are evidence of an unknown contract " but " the making' at what that contract is must be the result of evidence which the in question are allowed to introduce." (See Fry on Specific Pe ance, 6th ed., p. 277, sec. 581.) It was on this basis that the lea Judge admitted parol evidence of the arrangement betweei parties, and found as a fact the agreement already mentioned is clear enough, in the case of some oral contracts, that if , partly performed by one of the parties, that may in equity p1 the other from denying the contract or relying upon the Frauds, and Lowe J. held that this doctrine applied to all cor in which a Court of equity would entertain a suit if the contract had been in writing (Donnell v. Bennett (3); Metropolit Electric Supply Co. v. Ginder (4); Fry on Specific Perfor

6th ed., p. 283, sec. 593). This proposition goes beyond any d 7 case (see McManus v. Cooke (5) ), but, as Fry J. said, the auth are tending in that direction. However, I accept the propositi for the purposes of this case. Would then a Court of equity ha entertained a suit upon the agreement found by the learned Judg Courts of equity have, no doubt, exercised jurisdiction to eni contracts specifically and to restrain the breach of contracts wi such a Court would specifically enforce and to restrain the of negative stipulations in contracts whether in the particular : the Court would or would not specifically enforce the whole (Doherty v. Allman (6); McEacharn v. Colton (7); met Wagner (8); Whitwood Chemical Co. v. Hardman (9); Manche Ship Canal Co. v. Manchester Racecourse Co. (10) ). But over over again it is asserted in the books that a Court of equity not compel one party to perform his part of a contract unless ju ti can be done as regards the other party (Kernot v. Potter (11) ; 4 v. Wedderburn (12) ; Frith v. Frith (13)). Nor willit asa rule enfor

(4) (1901) 2 Ch. 799, at p. 808. (10) (1901) 2 Ch. 37.

(5) (1887) 35 Ch. D. 681. (11) (1862) 3 DeG. F. & J. 47:

(7) (1902) A.C. 104. (12) (1857) 3K. & J, 393; 69 E.R. U (13) (1906) A.C. 254. "@

contracts of personal service or any other contract the execution whereof would require continued superintendence by the Court (Ryan v. Mutual Tontine Westminster Chambers Association (1) ; » Mutual Reserve Fund Life Association v. New York Life Insurance Co, (2); South Wales Railway Co. v. Wythes (3) ).

The enforcement of the stipulations in the agreement found in the present case relating to the lease do not call for consideration : they have been carried out. The " sweet rights" stipulated for in the agreement are, therefore, all that need be considered. I pass by possible vagueness of the agreement in relation to these rights : how far the parties stipulated, if at all, for the control of such rights by the appellant. And I assume that it would have been enforceable by Jaw if it, or a note or memorandum thereof, had been in writing. It is clear that the Statute of Frauds is a complete answer at law to any action for damages arising from breach of the agreement. Again, it is clear, on the principles already referred to, that no Court of equity would have enforced, specifically or by way of injunction, the right of the respondents to sell sweets in the theatre. Nor would any such Court have enforced the right of the appellant to supervise and control the right of selling sweets in the theatre. The enforcement of either right would have required a continued and effective superintendence of acts and services which would be impossible for any Court. So we limit our consideration to the stipulation that the respondents should have the exclusive right to sell sweets in the theatre. This positive stipulation imports the negative that no other person should be allowed the right of selling sweets in the theatre. Indeed, the substance of the stipulation is that no other person should be allowed to sell sweets in the theatre (Wolverhampton and Walsall Railway Co. v. London and North- Western Railway Co. (4); Manchester Ship Canal Co. v. Manchester Racecourse Co. (5); Metropolitan Electric Supply Co. Lid. v. Giinder (6) ). Lowe J. concluded that a Court of equity had authority to and would enforce such a stipulation, though it would not or could not otherwise enforce the agreement, specifically or by means of

(1) (1893) 1 Ch. 116. (4) (1873) 16 Eq. 433, (2) (1896) 75 L.T. 528. (5) (1901) 2 Ch, 37.

(3) (1854) 5 DeG. M. & G. 880; 43 (6) (1901) 2 Ch. 799. ER. 1112.

an injunction. But it is just at this point that I am unable agree with the learned Judge. His view really means t stipulation of the sweets agreement can be enforced whilst ey other stipulation is unenforceable, both at law and in e parts of an agreement are separable and distinct from the rest can understand that a Court of equity might in a proper

enforce those parts and leave the parties to their remedies as to the rest of the agreement, especially where those would be adequate and just. But it is contrary to all e principles to enforce part of an agreement and leave the part without any remedy whatever as to all other obligations of t agreement. It would result substantially in very different leg obligations, and great injustice to both parties. In the present ¢

the respondents would have no redress if the appellant refus d allow them to sell sweets in the theatre, and the appellant not recover the charges payable in respect of the sweet have any redress if the respondents violated its directions as t dress, deportment and behaviour of their employees. In dissent entirely from the notion that this agreement can be di into two parts, one enforceable and the other wholly unenforceabl Consequently, in my opinion, a Court of equity would, in the « before us, have had no jurisdiction or authority whatever to enfor the stipulation giving the respondents the exclusive right of s sweets in the theatre by restraining the appellant from permi or allowing any other person to sell them. The Supreme Co 1928, sec. 62 (4) (Lord Cairns' Act), gives power to the Court to damages to a party injured in addition to or in substitution fo injunction restraining the breach of a contract. But under t section the respondents must make out that they are enti an equitable remedy before they can get damages (Elmore v. (1)). And damages at law for breach of the agreement cannot have by reason of the Statute of Frauds. The result is th the judgment ought to be reversed, though I sympathize with | learned Judge in his anxiety to give legal effect to what, at leas was an honourable understanding between the parties, es when its violation involved serious loss to the respondents.

Drxon J. By sec. 62 (4) of the Supreme Court Act 1928 of Victoria it is enacted that in all cases in which the Court entertains an application for an injunction against a breach of any covenant, contract or agreement, or against the commission or continuance of any wrongful act, or for the specific performance of any covenant, contract or agreement, the Court may, if it thinks fit, award damages to the party injured either in addition to or in substitution for such injunction or specific performance, and such damages may be assessed in such manner as the Court directs. This provision differs from sec. 2 of Lord Cairns' Act (21 & 22 Vict. c. 27) in the substitution of the expression "in all cases in which the Court entertains" for the words "in all cases in which the Court of chancery has jurisdiction to entertain." The change in the language may have been made because it was considered more appropriate, in the case of a Court exercising concurrently full jurisdiction at law and in equity, to speak of the application it entertains than of the application it has jurisdiction to entertain, or because the object of introducing the provision was to enable the Court to refuse altogether, or to modify, the injunction or the decree for specific performance to which the suitor would have been entitled and to give him damages in lieu of that remedy or in addition to the modified form of specific relief granted. The lack of such a power was referred to in Beswicke v. Alner (1). Whichever be the reason for the change in language, it does not operate to give to the Supreme Court of Victoria a wider power of substituting damages for equitable remedies than was conferred upon the Court of chancery by Lord Cairns' Act. That power is confined to cases in which there is a title to equitable relief, cases in which there are the ingredients that enable the Court, if it thought fit, to exercise its power of decreeing specific performance or of granting an injunction (Ferguson v. Wilson (2) ).

By the judgment under appeal Lowe J. exercised the authority given by the enactment and awarded damages in lieu of an injunction for breach of an agreement. He held, rightly, I think, that the agreement in question was one that was not to be performed within the space of one year from the making thereof, but, notwithstanding

(1) (1926) V.L.R. 725 47 A.L.T. 85. (2) (1866) 2 Ch. App. 77.

that the agreement was not in writing and there was no memorandy or note thereof, he considered that it might be enforced by injune because the plaintiff had acted in part performance of the agre

The question upon this appeal is whether an injunction might ha been granted to enforce the agreement upon the ground of p performance. The defendant Company, against which dan have been awarded in substitution for an injunction, was the les of a theatre where it conducted dramatic entertainments. directors were able to control the letting of a shop near by in wh confectionery was sold. The Company entered into an oral ment with the plaintifis that, if they should take over an lease of this shop and take an extension of the lease for five y the plaintiffs, during the term so extended in consideration of weekly payment of £14 during the performance of musical cor and of £12 during other performances, should have an exclusive to sell confectionery, ice-cream and non-intoxicating drinks members of the audience in the theatre. The conditions iny were not discussed, but they seem to have been understood by parties, who were experienced in such matters and were av the manner in which the sale of confectionery had been coi in the theatre. It appears from the evidence that implied in agreement were terms to the effect that the plaintifis should hay movable stand and show-case near the entrance to the stalls

in the gallery ; that the boys should be appropriately and clad in a manner approved by the manager of the theatre; their conduct and deportment should be under the control of manager of the theatre; that the plaintiffs should mai sufficient supply of a kind and quality of confectionery usually in the different parts of such a theatre, and that upon compli

with these conditions the plaintifis and their servants should t admitted to the theatre and its precincts from the time when | theatre opened for a performance until a reasonable time after last interval. A variation of the agreement was afterwards by which the plaintifis were allowed to put boys in the dress and stalls as well as in the gallery. It was also agreed that the be

employed by the plaintiffs should be clothed in a particular uniform. HL C. or A.

The plaintiffs entered upon the performance of the agreement, and, by their servants, sold confectionery from the stands and show-cases and in the auditory, and they duly made the weekly payments. But before the term of the agreement expired the Company purported to bring it to an end, contending that no fixed period had been agreed upon, and so renounced the contract. An action of damages could not but fail, because, when a common law remedy is sought, part performance never did and does not now afford an answer to the Statute of Frauds. Equitable relief is obtainable, notwithstanding the Statute of Frauds, by a party who in pursuance of his contract has done acts of performance consistent only with some such contract subsisting, but, if the doctrine is not confined to cases in which a decree might be made for the specific performance of the contract, it is at least true that the doctrine arose in the administration of that relief and has not been resorted to except for that purpose. It must be remembered that, although the remedy of specific performance is commonly applied in aid of a legal right, it extends to cases where, for one reason or another, there is no remedy at law, as well as to cases where the remedy at law is inadequate. See Fry on Specific Performance, 6th ed., secs. 49-60. But it is evident from a mere statement of the nature of the agreement in this case that it falls outside the scope of the remedy of specific performance. The parties meant their oral contract to be a final expression of obligation for the regulation of their future relations. It was not an agreement preliminary to a further transaction which, when carried out, should define their relative positions. Unlike a contract to assure property, it did not require the parties to adopt a formal instrument or to do some act in the law which should thereafter afford the measure of their rights and duties. Specific performance, in the proper sense, is a remedy to compel the execution in specie of a contract which requires some definite thing to be done before the transaction is complete and the parties rights are settled and defined in the manner intended. Moreover, the remedy is not available unless complete relief can be given, and the contract carried into full and final execution so that the parties are put in the relation contemplated

by their agreement. Specific performance is inapplicable when the Vou. XLV. 20

continued supervision of the Court is necessary in order to ensure the fulfilment of the contract. It is not a form of relief which e: be granted if the contract involves the performance by one par of services to the other or requires their continual co-operation, The doctrine of the Court of chancery was against decreeing one party to perform specifically obligations which the contract impos upon him, if it was unable to secure to him the performance by other contracting party of the conditions upon which those obligatior depended, and could only leave him to his action of damages at law in the event of the conditions being unperformed. In the p case the condition of the contract which entitles the plaintiffs and their servants to admission for the purpose of selling confectio in the theatre is concurrent with the conditions governing the tim place and manner of supply, the character of the goods suppli and the appearance, dress and behaviour of their servants. would be contrary to principle to bind the Company by a decree to perform its obligations leaving it only a remedy sounding in damag

observed by them. It would be equally contrary to princip! the Court to undertake the supervision of the specific fulfilment these conditions. It, therefore, could not be contended that a decree of specific performance. might be made, and it was re i that if the plaintiffs are entitled to any equitable remedy, it u

be by way of injunction. But the reason why specific perfi

restrain the violation of a provision or term of a contract which i the final expression of the parties' legal relations. But, in gra an injunction for this purpose, the Courts of equity acted in aid of a legal right. Before Sir John Rolt's Act (25 & 26 Viet. ¢. # a perpetual injunction was not granted restraining breaches of suc an agreement until the right had been tried at law. The remedy' injunction was, of course, appropriate to and was and is freely for the protection of equitable interests and rights, but in matter of contract, as in matters of tort, it does not appear to have b used except in aid of a legal right unless in a case falling within th

scope of the remedy of specific performance, e.g., McManus v. Cooke (1). '"' Where a Court of equity was asked to enforce a contract by injunction, it merely acted in furtherance of common law rights. Hence, it did not of itself determine except in the clearest cases (until it received statutory authority to do so) either the validity or construction of the contract, but referred these matters to a Court of common law. If the contract could not be enforced at common law by an action of damages, it could not be enforced in equity by an injunction. On the other hand, in cases of specific performance strictly so called, the Court of equity itself has for the last two hundred years decided on the validity and construction of the contract with which it had to deal; and it performs contracts for the breach of which an action of damages could never have been brought, e.g., contracts struck at by the Statute of Frauds but partly performed by the plaintiff' (Ashburner, Principles of Equity, p. 526). If, however, a clear legal duty is imposed by contract to refrain from some act, then, prima facie, an injunction should go to restrain the doing of that act. It appears to be of little importance now whether the duty is imposed by a term of the contract expressed in negative or affirmative language. It is said that the agreement in this case imposed upon the Company a duty not to revoke, during the term contracted for, the licence to the plaintiffs to go into the theatre to sell confectionery, and, during the term, to admit to the theatre no one else for the purpose of selling confectionery. To grant an injunction restraining the defendants from doing either of these things may appear an indirect way of compelling specific performance of the Company's part of the agreement. Probably the true rule is that an injunction should not be granted which compels, in substance, the defendant to perform his side of the agreement when the continuance of his obligation to do so depends upon the future conduct of the plaintiff in observing conditions to be fulfilled by him. If the contract is one the execution of which the Court cannot superintend, it does not seem to be in accordance with principle to bind one party to performance in specie leaving him to a remedy in damages only if the other fails to fulfil the conditions on his side to be observed. But, perhaps, if a clear and

1931, we J.C, Wiittamson Lrp. os Luxey AND MuL- HOLLAND.

negative duty is imposed even by such a contract, an inj may be granted when the remedy at law is inadequate to the rig at least when, by dissolving the injunction in the event of plaintiff's own subsequent breach of condition, the parties may restored to the relative position they occupied before suit. assuming the agreement between the parties in this case should be interpreted in a way which would give rise to a negative duty ' the required character either not to revoke the licence or not admit a stranger to sell confectionery, yet that duty is not enfore at law because the contract is not evidenced by writing. Thus n injunction can be granted in aid of a legal right to enforce the dut y, and the injunction must be founded upon an equitable title to it performance. The agreement gives no equitable interest, and the equity must arise, if at all, from part performance. Moreover, must not be forgotten that, by reason of the Statute of Frauds, the conditions of the contract to be observed on the part of the plai may be broken by them with impunity damages upon the contract could lie at the suit of the Comp The plaintifis must, therefore, rely upon acts of part performance 1 give them an equity to the independent enforcement of the negative duty incurred by the Company, although the remainder of contract is entirely unenforceable on either side both at law and it equity.

In cases of specific performance, the party is said to be ch upon the equities arising out of the acts of part performance and not merely upon the contract. The acts of part performance must be such as to be consistent only with the existence of a conti between the parties, and to have been done in actual performa of that which in fact existed. But in such a case the equity w so arises is to have the entire contract carried into execution b both sides. Because the acts done upon the faith of the contract could not have taken place if it had not been made, and the contract is of a kind which it is considered equitable to enforce i specie, a party who has so acted in partial execution of the contt obtains an equity to its complete performance. But in a case the present which, because of the nature of the agreement, li outside the scope of the remedy of specific performance, no e

can arise to have the contract carried into complete execution. No equity could be set up save to have a distinct negative duty separately enforced. It may well be that such an equity can never be found in agreement unless the agreement gives rise to an enforceable legal right. But, if it conceivably may arise from acts of part performance, those acts must be of such a nature as to make it right to enforce the negative duty separately, and they must do more than give rise to considerations in favour of requiring performance in specie of the entire contract. Acts which merely argue the existence of a contract which is outside the scope of equitable remedies cannot suffice. When breach of a negative stipulation is enjoined, that term of the contract is enforced irrespective of the remaining provisions. The equity to its enforcement is found in the nature of the negative stipulation itself considered as a separate obligation. If the party against whom an injunction is sought is to be charged not merely upon the negative contract, but upon the equities arising out of acts of part performance, surely to give rise to the equities the acts of part performance relied upon must directly telate to the negative duty. It may perhaps be true that, because of the negative character of the obligations to which an injunction is appropriate, acts of part performance can seldom, if ever, directly telate to such obligations. This may be the reason why no case has been found in which acts of part performance have been relied upon as affording a title to an injunction restraining breach of a negative agreement. But, however this may be, in this case there are no acts of part performance which are referable unequivocally

to the existence of anything more than some contract enabling the plaintiffs to sell confectionery and the like in the theatre. There are no acts which directly relate to the existence of a duty not to tevoke the licence, or of a duty not to admit a stranger to sell confectionery. It is, therefore, unnecessary to decide whether in such a case as the present anything but a legal right enforceable at law will support the injunction. It is enough to say that no acts of part performance have taken place from which a negative equitable obligation arises.

For these reasons I am of opinion that the case was not one in which the Court would entertain an application for an injunction, and that the judgment should be reversed.

The appeal should be allowed with costs and the action s be dismissed. . At the trial the defendants disputed the agreement alleged ay upon this, which was the major issue, they failed. Instead 0 ordering a taxation of the costs of the action and of the issues up which the defendants failed with a set off, the better course ap to be to allow the parties to abide their own costs in the Supre Court, a course which probably will produce much the same result

Evarr J. The plaintiffs alleged that, in the month of 1926, a parol agreement was made between the defendant Cony and themselves that, in consideration of the plaintiffs taking over an existing and entering into a new lease of certain premises, (the plaintiffs) would have until July 8th, 1932, "the exclusive to sell sweets and confectionery " in the Theatre Royal, Mel and the precincts thereof. Evidence of this agreement, of its bein partly carried out, and of its breach by the defendant was gi the learned Supreme Court Judge, Lowe J., finding the fom in favour of the plaintiff.

In the action the plaintifis claimed specific performance of the agreement, an injunction restraining the defendant from preventing the plaintiffs' exercise of their exclusive right, and damages. J. held that the agreement was one to which sec. 4 of the f Frauds (sec. 128 of the Instruments Act 1928) applied, as being an agreement not to be performed within the space of one year from the making thereof. This view was clearly right. Obligations thrown by the agreement upon both parties, which were int to last for upwards of five years.

The learned Judge also held that, had the agreement sued « on been in writing, a Court of equity would have entertained jurisdi in respect of the contract; that this being so, the equitable doctrine of part performance applied to take the case out of the Statule ¢ Frauds; that part performance had been proved ; that Lord Cai Act (Supreme Court Act 1928, sec. 62 (4) ) enabled damages to awarded in substitution for the remedies of injunction or s performance ; that damages could be awarded and should bea as for breach of contract at common law. The assessment was

45 C.L.R.] OF AUSTRALIA. 303 at £2,250, and judgment was entered for the plaintiffs for that sum ¥- ©. or 4. with costs, no other order being made. ue

By these successive steps in the application of legal or equitable J. © Witramsos

doctrines an interesting, if at the same time somewhat startling, ian, conclusion was reached. Proceeding from the position that the |"... Courts of common law could not award damages for breach of the me BS agreement alleged, owing to the absence of the writing made Tene requisite by the Statute of Frauds, the final decision reached is the award of those very damages, ascertained by precisely the same measure. The chain of reasoning involves a consideration of the various links which go to make it up. Mr. Hudson's argument has drawn pointed attention to the weaker links in the chain.

At the outset, it is necessary to ascertain what was the actual verbal agreement come to between the parties. Its general nature I have already referred to. The evidence sometimes speaks of " sweets' rights," and sometimes of "inside rights." The place in which the plaintiffs were to be permitted to sell their goods was a place of public entertainment controlled by the defendant. It was contemplated, no doubt, that, during the musical and dramatic performances provided for their patrons by the defendant, the plaintiffs should be allowed to exercise their trade to the exclusion of all others.

The question immediately arises as to whether the only obligation of the plaintiffs was to pay the price agreed upon for the licence. Was not the exercise of the "rights"? subject to the require- ment of the plaintiffs' performing certain duties? The learned Judge did not find it necessary to ascertain the conditions and limitations, if any, to which the agreement or the licence was subject. The plaintiffs themselves seem to have been quite aware of the

existence of certain limitations. Mr. Mulholland, for instance, said : - "Only two or three boys were permitted in the house and those in the gallery. I understood that the servants attending to sweets must be decently attired to the satisfaction of the management. I knew that there were certain rules of conduct for theatre employees which would have to be complied with

by my employees, During the time I have exercised inside rights T have been subjected to that control and have acquiesced in it. Arthur Tait said: 'Now that your boys are permitted to be in the theatre I do not want them to wear these white coats, you will have to have decent uniforms for them.' I sub- mitted material and had suits made for the boys. This was after Hillier was

HC. or A. given certain rights as to the Comedy Theatre. No design submitted by 1931. has been rejected, If any of the boys were found objectionable to the aed dants they were discharged."

a cea The witness's co-plaintiff, Mr. Lukey, also said : -

Lrp. " About 12 to 18 months ago we sought permission to introduce boys to v in the stalls; that increased the turnover 33 per cent. One of the ian set 5 was that we should not have boys in the dress circle or the stalls when we fir Cea took the rights; Major stipulated for this at the first interview when

discussed the rights - that was the first interview after seeing Tait. Evatt J.

manner in which Friend was carrying on. Mr, John Tait does not agree th boys should be in the stalls or the dress circle, We did not argue the We wanted the sweets' rights. I did regard myself as bound to keep a suf

of the boys was 6 matter under the control of the theatre proporietors." The previous holder of the sweets' rights held his licence und

stringent conditions. Exhibit 5 shows the nature of the conditions It provides for approved uniforms, approved quality of sweets and extensive rights of supervision and control, including the right to dismiss the employees of the licensee. Bad or careless manage-_ ment on the part of the holder of the rights would obviously cau distinct business embarrassment, inconvenience and loss to defendant. It would seem to follow that some right of general control | and general supervision was necessary in the interests of both parties. The appearance, demeanour, and behaviour of the se1 of the licensee was a matter of vital importance. These serva would come into direct relationship with the patrons of the theatre. In view, however, of the plaintiffs' understanding of the contract it is unnecessary to consider whether the law would not hay implied certain terms in order to secure ultimate control of th position by the theatre proprietors. It must be assumed that contract between the parties, if in writing, would have provided for (a) the exclusive right of the plaintiffs to sell sweets to the patrons of the defendants at certain intervals di theatrical performances ; (b) payment of the agreed rental by the plaintiffs, and enjoy-

ment of the right through the agreed period ; and (c) control and supervision of the plaintiffs and their se:

by the defendants to secure a reasonably efficient service, and a correlative duty on the part of the plaintiffs to rende the service under such conditions.

Tn my opinion the agreement did not entitle the plaintiffs to exclusive possession of any portion of the theatre. What was conferred was merely a licence or privilege to use portions of the premises from time to time, the defendant retaining at all material times the legal possession of the whole of the theatre. No interest in Jand was granted, and the rights obtained were purely contractual and personal, and not of a proprietary nature (Frank Warr & Co. Ltd. vy. London County Council (1); Jackson vy. Simons (2) ). This at once distinguishes the present case from that of Joel v. Inter- national Circus and Christmas Fair (3), and James Jones & Sons Ltd. v. Tankerville (4). In Joel's Case (5) on the true construction of the agreement between the parties the right to possession given was found to be exclusive. In Jones's Case Lord Parker (then Parker J.) said (6) :

"A licence to enter a man's property is prima facie revocable, but is irrevoc- able even at Jaw if coupled with or granted in aid of a legal interest conferred

on the purchaser, and the interest so conferred may be a purely chattel interest or an interest in realty."

The actual right enforced in the case by way of injunction was aright to cut and carry away timber on the defendant's land, the legal property in the timber being in the plaintiff as soon as the timber was cut.

But it might be said that a right to sell goods on another person's land is at least as far removed from a merely personal right, as the tight to witness a theatrical entertainment, or a sporting fixture being held thereon; and in Hurst v. Picture Theatres Ltd. (7) the plaintiffs' right consisted merely in a licence to be upon the premises for a certain time, in order to witness a moving picture show, money having been paid for such right. The defendant in that case revoked the licence without notice during the performance, and the decision of the Court of Appeal is occasionally referred to, in order to justify the enforcement of similar contracts by way of specific performance or injunction. Some of the statements made and the suggestions founded upon Hurst's Case must be re-examined if it becomes necessary to determine whether equitable relief should be granted

(2) (1923) 1 Ch, 373, at p. 380. (5) (1921) 124 LT, 459.

(3) (1921) 124 LT. 459; 65 Sol. Jo. (6) (1909) 2 Ch., at p. 449. 293, (7) (1915) 1 K.B. 1.

in analogous cases. The actual decision in Hurst's Case (1), howey merely rejected the plea of the defendant that the licence give to the plaintiff having been duly revoked, he was removed from th land as a trespasser. The action being one of assault, the case ma conceivably be treated upon the footing that a Court of e might have restrained the defendant from pleading such a j cation, which was dishonest in view of the contract made (31 L Quarterly Review, p. 219 n.). An injunction of such a chai however, is very different from the enforcement in equity o contract itself. i For the plaintiffs to justify the retention of the judgment in th favour in the present case, the agreement being within sec. 4 0 Statute of Frauds, itis necessary for them to show that, had the contra been in writing, a Court of chancery would, in the circum have decreed specific performance of the agreement, or, at le have granted relief to the plaintifis by way of injunction. Lord Cairns' Act did not enable the Supreme Court of Vi to award damages unless one or other of the two equ remedies was appropriate to the circumstances of the case (. v. Pursell (2) ). It was not seriously contended before us the remedy of specific performance of the contract would been granted in equity. The agreement involved repeated acts an might have required constant supervision (Ryan v. Mutual To Westminster Chambers Association (3) ). Moreover, upon any b or repudiation of the agreement by the plaintiffs, the defendar could not have obtained an order for specific performance. It follows that the case for the plaintifis is reduced to # following four contentions : - x (1) If the agreement had been written, an injunction wo granted against the defendant in a Court of equity. (2) The equitable doctrine of part performance is n to cases directly relating to an interest in land nor to st for specific performance of contracts relating to interests, but should be extended to every case wh

Court of equity would grant an injunction to breach of a contract within the Statute of Frauds.

(1) (1915) 1 K.B.1. (2) (1888) 39 Ch. D. 508. (3) (1893) 1 Ch. HF

(3) The evidence shows that the plaintiffs partly performed the contract within the meaning of the doctrine.

(4) The plaintiffs may therefore retain their judgment for damages in lieu of an injunction by virtue of Lord Cairns' Act.

The plaintiffs' claim to an injunction, as pleaded, was for an order restraining the defendants "from preventing the plaintifis from exercising the exclusive right of selling sweets" in the theatre. Although this bears the form of an order of a negative character, in substance it is a request for specific performance of the agreement itself, and such remedy would have been refused for the reasons already given.

It was suggested on the hearing before us, therefore, that an injunction could be granted in the present case because the exclusive tight of selling sweets at the theatre, although in itself positive, clearly implied that no other person should enjoy the right during the currency of the licence. The latter was a negative stipulation which a Court of equity would enforce by injunction, holding itself at liberty to dissolve the injunction upon any breach of the agreement by the plaintiffs, or perhaps insisting, as the price of the order, upon an undertaking from the plaintiffs that they would carry out the agreement on their part.

Th my opinion, it is open to the gravest doubt whether any such injunction would be granted bya Court of equity in the present cireum- stances. As the Judicial Committee of the Privy Council has pointed out, the remedy of an injunction as granted in James Jones & Sons Lid. y. Tankerville (1) " depends upon very special circumstances "" (Waimiha Sawmilling Co. v. Waione Timber Co. (2) ). First of all, the exclusive right of the plaintiffs to sell sweets implies positive acts as well as forbearances on the part of the defendant. The positive aspect of the matter that the plaintifis shall be allowed to sell, is as important as the negative correlative that no other person shall be allowed to sell. The negative requirement that the plaintiff shall not be prevented from selling, is coupled with the positive requirement that all other persons shall be prevented. To manufacture two negative stipulations out of this portion of the

(1) (1909) 2 Ch. 440. (2) (1926) A.C, 101, at p. 104,

Moreover, if I may say so, I entirely agree with the clos reasoned judgment of Long Innes J. in Wood v. Corrigan (1). In: injunction suit it is not sufficient to prove that a contract inyol V a substantial negative, where damages would be a complete rer for the threatened breach and where the contract is of s nature that it cannot be specifically enforced. This seems to b the principle which is gradually being evolved, and the result seer both just and convenient. I should add that, in this very e counsel for the plaintiff stated at the trial that it was a matter practical indifference to the plaintiffs whether relief was to be gi to them specifically, or by way of damages.

I do not deem it necessary, however, to express a con opinion as to whether the remedy of injunction could have obtained by the plaintiffs in the action, because I hold that 1

only equitable remedy available is that of injunction, and the Cour refuses to enforce the contract as a whole. :

The equitable doctrine of part performance has had mi champions. Its elasticity was most useful to the Chancello during the great historical struggle with the Courts of law. Statute of Frauds must not, it was claimed, be used as an instrument of fraud. The consequence was a substantial alteration of th Statute of Frauds itself which, as Lord Blackburn pointed out Maddison v. Alderson (2) was interpreted by Courts of equity a

land shall be given and accepted." The judicial gloss on hl statute was regarded by him as an unjustified interpolation. It justification was historical, not logical. Indeed, the speech of 1 Earl of Selborne in the same case, which puts forward the doct from the point of view of Courts of Equity in the most effecti and plausible way, has running through it, I fancy, an undereurren which admits the foree of Lord Blackburn's criticism. "Ina st founded on such part performance," said the Lord Chancellor (3

(1) (1928) 28 S.R. (N.S.W.) 492. 2) (1883) 8 App. Cas., at p. 489. (3) (1883) 8 App. Cas, at p. 475.

"the defendant is really ' charged ' upon the equities resulting from H- ©. or A. 1931.

the acts done in execution of the contract, and not (within the meaning of the statute) upon the contract itself. If such equities were excluded, injustice of a kind which the statute cannot be thought to have had in contemplation would follow." His Lordship went on to give an illustration from a case of possession of land, showing a very harsh result from the literal application of the statute.

None the less, there is no escape from the truth of the comment of Brett L.J. in Britain v. Rossiter (1), that the cases in the Court of chancery, applying the doctrine of part performance to suits concerning Jand, although the evidence required by the statute was lacking, were "bold decisions on the words of the statute."

The illustration already referred to in the speech of the Earl of Selborne was a case of great and prejudicial alteration of position as a result of part performance of the agreement. This gave rise, it was said, to a practical necessity to enforce "equities," the matter having passed beyond the stage of contract. In a proper case, however, where it is required to examine the acts of part performance, to ascertain the true contract between the parties, and enforce it soas to do justice, it is the whole contract and not part

"The conduct of the parties may be such as to make it inequitable to refuse to complete a contract partly performed. Wherever that is the case, I agree that the contract may be enforced on the ground of an equity arising from the conduct of the party" (per Lord Blackburn (2)). 'The matter has advanced beyond the stage of contract " (said the Earl of Selborne); "and the equities which arise out of the stage which it has reached cannot be administered unless the contract is regarded. The choice is between undoing what has been done (which is not always possible, or, if possible, just) and completing what has been left undone " (3).

The justification for intervention by the Court of chancery was, indeed, the vital necessity, in the interests of justice, of ordering completion of an agreement which had been performed by one party to such an extent that a substantial alteration of position had resulted. Both the speeches I have mentioned indicate that the object of equity was to compel "completion" of the agreement, and not

(1) (1879) 11 Q.B.D. 123, at p. 129. (2) (1883) 8 App. Cas., at p. 489. (3) (1883) 8 App. Cas., at p. 476,

But in the case of an application to a Court of equity for prevention of the breach of some particular negative stipulati a contract, the jurisdiction exercised expressly disclaims the righ of acting in personam so as to secure completion. And ; justification for the application of the doctrine of part perfom ance ceases to exist if only a part of the contract within ¢h Statute is enforced. The very name of the doctrine - * pq performance "" - indicates that the object is always to e part performance into complete performance. If a negative s lation in an agreement within sec. 4 of the Statute were of itse and by itself enforceable in equity, the result would be the p curing of an injunction by one party whilst the defendant equity would not only ex concessis be unable there to enfo rest of the agreement but would be unable because of the st to enforce his rights at law. In addition, Britain y. Rossiter is largely founded upon the desirability of not extending - doctrine of part performance to contracts which do not relate t land. The striking illustration of hardship given by the Ear Selborne in Maddison v. Alderson (2) related to land; and indee where A has allowed B to enter into possession of his (A's) la such fact at once suggests the existence of some agreement e¢ cerning the land. Res ipsa loquitur. Written evidence of th agreement there is none; but there is, in the facts themselves, sor guarantee, at least, that the fraud and perjury which it was fl object of the Statute of Frauds to prevent are not being perpetrat (Cf. In re a Bankruptcy Notice (3).) '

The evidentiary difficulty is much greater if one takes, by way ' illustration, that part of sec. 4 of the Statute of Frauds requires written evidence of an agreement not to be perform within the space of one year from the making thereof. Assume' existence of such an agreement, not followed by any change of p sion of land. A case is furnished by an oral agreement of service f (say) five years including an undertaking by a party, to op reasonable restraint of trade at the termination of the p service. (Cf. Reeve v. Jennings (4).) The agreement is within

(1) (1879) 11 Q.B.D. 123. (3) (1924) 2 (2) (1883) 8 App. Cas., at p. 481. per Atkin LJ. (4) (1910) 2 K.B. 522,

statute, and, in the absence of writing, no defendant can be charged at law upon it. Let it be assumed to be "partly performed" by the rendering of service and payment therefor over a period of (say) two years. Such "part performance '' is consistent with an agreement of less than one year's duration, e.g., a mere weekly or monthly hiring which has been continued. A Court of equity would not, by reason of such " part performance " of the agreement, or the entire performance of it (save for the undertaking itself), enforce the restrictive undertaking.

The matter may well be considered from this evidentiary point of view, and a good deal of attention was devoted to the subject in Maddison vy. Alderson (1). Many difficulties will arise and further embarrassment result if the doctrine of part performance is applied further than it has been. I do not deny that there is some support for its proposed application to suits for injunction to enforce a stipulation in a contract within the Statute of Frauds. Perhaps, equity having once opened the floodgates of oral testimony in analogous cases, the flood should be allowed to come through uncontrolled. For my own part, I am not prepared to be a party to any novel development of the doctrine.

In this case no specific performance of the contract is possible. The injunction suggested, if appropriate to a written contract embodying the oral arrangement, would not complete the contract. The subject matter of the agreement is not an interest in land nor any proprietary right. In dealing with that part of sec. 4 of the Statute of Frauds, referring to agreements extending for more than 4 year, many difficulties as to what is satisfactory and compelling evidence of part performance would at once arise.

I accordingly hold against the contention of the plaintiffs that the doctrine of part performance is applicable. to the case. If it is desired to " extend " the doctrine, for that is the euphemistic word, I think the extension should be made on the responsibility of the Legislature, which has so recently re-enacted the Statute of Frauds, and not by the method of judicial legislation.

For these reasons I am of opinion the appeal should be allowed and judgment entered for the defendant.

McTiernan J. The terms and conditions of the contract was made by and between the appellant and respondents are state in the judgments of other members of the Court. I agree that contract was one that was not to be performed within the space 0 one year; and, as it was an oral agreement, no action at law equity could be brought whereby to charge the appellant upon it Notwithstanding, the learned Judge in the Court below g judgment in favour of the respondents for the breach of the ment, which he found to have been committed by the appellar His Honor held that the equitable doctrine of part perform: applied in the case of an application for an injunction, and that 1 acts which he found had been done by the respondent in out the contract were acts of part performance within the m of that doctrine. The Court awarded damages to the responds in substitution for the injunction against the breach of the agreemer to which the Court was of the opinion that the respondents war entitled. It acted under the provisions of sec. 62 (4) of the Suprem Court Act of Victoria, whereby it is enacted that " in all cases inw the Court entertains an application for an injunction against breach of any covenant contract or agreement . . . or for th specific performance of any covenant contract or agreement the Court may if it thinks fit award damages to the party inj

in substitution for such injunction or specific perform and such damages may be assessed in such manner as the Court directs." As the agreement was struck at by sec. 128 of Instruments Act 1928, the respondents were not entitled to succeed as on an action at law, in which their remedy would have bee damages.

The question arises, therefore, whether the case was one to which equitable relief by way of specific performance or injunction applicable.

As to Specific Performance. - The learned trial Judge, referring to the statement made by respondents' counsel at the tr that it was a matter of practical indifference whether relief wer given to them specifically or by way of damages, said: "I consequently relieved from considering whether the decree for specific performance should not be in the form of a direction to

defendant, J. C. Williamson Ltd." (the present appellant), "to execute in a proper form a grant of the rights agreed to be given to the plaintiffs" (the present respondents). With deference to the learned Judge, I think that he misapprehended the nature of the contract into which the appellant and the respondents had entered. The view which I take of the contract is that the relative positions of the parties were finally determined and settled by the terms and conditions of that contract. In Wolverhampton and Walsall Railway Co. vy. London and North-Western Railway Co. (1) Lord Selborne said : - " There is a class of suits in this Court, known as suits for specific performance of executory agreements, which agreements are not intended between the parties to be the final instruments regulating their mutual relations under their contracts. We call those executory contracts as distinct from executed contracts : and we call those contracts 'executed,' in which that has been already done which will finally determine and settle the relative positions of the parties, so that nothing else remains to be done for that particular purpose. The common expression ' specific perform- ance,' as applied to suits known by that name, presupposes an executory as distinct from an executed agreement, something remaining to be done, such as the execution of a deed or a conveyance, in order to put the parties in the position relative to each other in which by the preliminary agreement they were intended to be placed. Of course if you pass from the technical to the etymological effect of the words, ' specific performance ' might signify any direction given by the Court for the doing of anything whatever in specie ; and I cannot help thinking that in this class of cases a little confusion has sometimes arisen from transferring considerations applicable to suits for specific performance, properly so called, to questions which have arisen as to the propriety of the Court requiring something or In my opinion, the contract which the

other to be done in specie." parties entered into in the present case was an " executed " contract, in the sense in which that term is used by Lord Selborne. Continuing, his Lordship said: - '' There is a considerable class of contracts, such as ordinary agreements for work and labour to be performed, hiring, and service, and things of that sort, out of which most of those

ety J.C. WILLiaMson Lrv. v Lukey anp Mout- HOLLAND.

• act such as this Court is in the habit of requiring to be perform

cases for ' specific performance ' ; in other words, the nature of 5 contract is not one which requires the performance of some de!

by way of administering superior justice, rather than leave

the notion of specific performance were applied to ordinary contr for work and labour, or for hiring and service, it would require series of orders, and a general superintendence, which could not conveniently be undertaken by any Court of Justice ; and therefore contracts of that sort have been ordinarily left to their operation ' law." a

Upon a consideration of the terms and conditions of this conti ¢ it will be apparent, I think, that the acts and services which respondents are bound to perform are of such a nature that performance of them could not be efficiently supervised by Court, and that the contract as a whole is of such a nature that the Court would not, in the exercise of its equitable jurisdiction, enfor e it by a decree for specific performance. "It is another rule that

the Court will only interfere by way of compelling specific perform

whole ; and that it will not interfere to compel specific performance of part of an entire contract" (Ryan v. Mutual Tontine Westminst Chambers Association (1) ). Thus the judgment in the Court below cannot be supported on the ground that this is a case in which, as _ the language of sec. 62 (4) of the Supreme Court Act expresses it, the Court entertains an application for the specific performance of a contract. 5

As to Injunction. - The agreement did not, in my opinion, create any proprietary right at law or in equity. The relationship which it established between the appellant and the respondents was contractual. The respondents' remedy, if any, for the wrongfu revocation of the licence which the appellant gave them was" ex contractu (Kerrison v. Smith (2) ). I am conceding in favour of - the respondents that the contract contained a definite stipulation - on the part of the appellant that it would not, during the period -

mentioned in the agreement, revoke the licence which the respondents obtained by the agreement to enter the theatre for the purpose of selling sweets and confectionery, and that it would not, during the same period, admit any person other than the respondents or either of them or their servants or agents to sell sweets and confectionery in the theatre. In my opinion, that stipulation does not contain an absolute or independent promise. I think that the obligation which it imposes on the appellant is correlative to the obligations imposed upon the respondents by the contract. The question arises whether the Court in its equitable jurisdiction would entertain an application for an injunction against the breach of that negative stipulation. It is part of an oral contract, the whole of which is struck at by sec. 128 of the Instruments Act 1928.

The principle upon which a Court of equity acts in enforcing a negative stipulation by injunction was explained by Lord Cairns L.C. in Doherty v. Allman (1). His Lordship said : - '* My Lords, if there had been a negative covenant, I apprehend, according to well-settled practice, a Court of equity would have no discretion to exercise. If parties, for valuable consideration, with their eyes open, contract that a particular thing shall not be done, all that a Court of equity has to do is to say, by injunction, that which the parties have already said by way of covenant, that the thing shall not be done ; and in

"such case the injunction does nothing more than give the sanction of the process of the Court to that which already is the contract between the parties. It is not then a question of the balance of convenience or inconvenience, or the amount of damage or of injury - it is the specific performance, by the Court, of that negative bargain which the parties have made, with their eyes open, between them- selves,"

If the contract in the present case had been in writing, the immediate question for decision would have been whether the respondents had an equity to have the appellant restrained by injunction from doing the thing that it said by way of a stipulation in the agreement should not be done by it. I have already stated my view, that the contract as a whole, of which this negative stipulation is a part, is beyond the scope of the equitable remedy of

specific performance. In Fothergill y. Rowland (1) Sir George Jes MR. said : - " It is difficult to follow the distinction, but I cannot find any distinct line laid down, or any distinct limit which I ¢ seize upon and define as being the line dividing the two classes, cases - that is, the class of cases in which the Court, feeling th has not the power to compel specific performance, grants an injunction to restrain the breach by the contracting party of one more of the stipulations of the contract, and the class of cases | which it refuses to interfere. I have asked (and I am sure I should have obtained from one or more of the learned counsel engaged i the case every assistance) for a definition. I have not only no been able to obtain the answer, but I have obtained that y altogether commends my assent, namely, that there is no distinct line to be found in the authorities. I am referred to vag and general propositions - that the rule is that the Court is to find out what it considers convenient, or what will be a case of s importance to authorize the interference of the Court at all, or thing of that kind." His Lordship continued: "That being s and not being able to discover any definite principle on which the Court can act, I must follow what Lord St. Leonards says, in v. Wagner (2), is the proper conduct for a Judge, in not e: this jurisdiction."

The current of authority dealing with the question raised by Sir George Jessel was clearly traced by Long Innes J. in Wood) Corrigan (3). In addition to cases cited by Long Innes J., e Peperno v. Harmiston (4) and Paris Chocolate Co. v. Crystal P Co. (5). In the latter case the agreement was similar in respects to the agreement in the present case. But as the negati stipulation in the present case is not in writing and cannot b proved, on account of the application of sec. 128 of the Ins Act 1928, the question arises whether the Statute is fatal to action to charge the appellant upon that stipulation. The le trial Judge held that it was not. In McManus v. Cooke (6) Kay | said : - " The doctrine of part performance of a parol agree

(1) (1873) LR. 17 Eq., at p. 141. (4) (1886) 31 Sol. Jo. 154.

(2) (1852) 1 DeG. M. & G. G04; 42 (5) (1855) 3 Sm, & Gick 119;

E.R. 687. E.R. 588. (3) (1928) 28 S.R. (N.S.W.) 492. (6) (1887) 35 Ch, D., at p. 697.

which enables proof of it to be given notwithstanding the Statute of Frauds, though principally applied in the case of contracts for the sale or purchase of land, or for the acquisition of an interest in land, has not been confined to those cases. . . . Probably it would be more accurate to say it applies to all cases in which a Court of equity would entertain a suit for specific performance if the alleged contract had been in writing." Commenting on this statement, the writer in Fry on Specific Performance, 6th ed., at p. 283, says: "Tt may be questioned whether this statement of the extent of the doctrine would not be made more accurate by omitting the words "for specific performance.'" The learned trial Judge applied the principle contained in the latter quotation to the present case. After enumerating the acts which had been done by the respondents in performance of the agreement, he said (1): "' These acts viewed as a whole are, in my opinion, ' unequivocally, and in their own nature, teferable to some such agreement as that alleged, - see per Lord Selborne in Maddison v. Alderson (2), - and consequently authorize me to inquire into the terms of the actual agreement."

It is conceded in favour of the respondents that a negative stipulation to the effect of that which has already been described was a term of the agreement. The learned Judge was of opinion that it was a case in which the Court would therefore grant an injunction against the breach of the agreement, or order that it be specifically performed. I have already referred to what his Honor said as to the form of decree for specific performance which he was contemplating.

When part performance is established in a suit for specific perform- ance, and the Court makes a decree for the specific performance of a contract, the whole contract to which the part performance is referable is ordered to be performed. It would be a remarkable result if this contract, which is beyond the scope of the equitable Jurisdiction of the Court to grant specific performance, could be indirectly enforced in its entirety in specie by way of injunction against its breach, upon proof that it had been partly performed. Althongh the basis of the judgment in the Court below is that damages were awarded in substitution for an injunction, a more

(1) (1931) V.LLR., at pp. 82, 83. (2) (1883) 8 App. Cas., at p. 479.

• the negative stipulation. It has already been stated that the

been brought about by the judgment which is the subject of appeal. The Court enforced part only of the agreement, nam

account of the Statute of Frauds. If the doctrine of part perform- ance applies so that the negative stipulation can be enforced against the respondents separately from the other parts of th contract, then, in my opinion, the acts which are relied upon as having been done in part performance of the contract sh "unequivocally and in their own nature refer to some such agreement " as that negative stipulation. In the Court below learned Judge said : - " The evidence establishes beyond que that the plaintiffs took an assignment from Divoli of the ba of his term, and executed a lease for five years from the defendant Theatre Royal Pty. Co. Ltd. that from 13th November 1926 to September 1930 they maintained stalls for the display of sweets in the Theatre Royal, that during the performances therein through their servants they and they alone offered for sale and sold in theatre and its precincts sweets, and that throughout this period they made payments from time to time to the defendant C. Williamson Ltd. and received receipts therefor from defendant." It does not appear to me that these acts are of the selves unambiguously and in their nature referable to any binding promise on the part of the appellant that it would not revoke th licence to the respondents to enter the theatre to sell sweets and confectionery or that it would not admit anyone else to the theatre to sell sweets and confectionery therein. Therefore, assuming the doctrine of part performance does extend to an application for injunction against the breach of a negative stipulation, in my opini the action should nevertheless have been dismissed. When in a suit for specific performance the Court has found that there has been part performance, and then proceeds to de specific performance of the contract, although there is no note ¢ memorandum of it as provided by the Statute, the principle upo which the Court acts was described by Lord Selborne in Madd

y. Alderson (1) in these words : - " In a suit founded on such part H- ©. oF A. performance, the defendant is really 'charged' upon the equities pads resulting from the acts done in execution of the contract, and not J. C. (within the meaning of the statute) upon the contract itself. If Be ee such equities were excluded, injustice of a kind which the Statute cannot be thought to have had in contemplation would follow.

It is not arbitrary or unreasonable to hold that when the

aia McTiernan J. Statute says that no action is to be brought to charge any person upon

a contract concerning land, it has in view the simple case in which he is charged upon the contract only, and not that in which there are equities resulting from res geste subsequent to and arising out of the contract. So long as the connection of those res geste with the alleged contract does not depend upon mere parol testimony, but is reasonably to be inferred from the res geste themselves, justice seems to require some such limitation of the scope of the Statute, which might otherwise interpose an obstacle even to the rectification of material errors, however clearly proved, in an executed conveyance, founded upon an unsigned agreement." The principle, however, upon which the Court acts in enforcing a negative agreement by an injunction is contained in the statement which I have quoted from the judgment of Lord Cairns in Doherty y. Allman (2). In Lumley v. Wagner (3) Lord St. Leonards, speaking on the same subject, said : - ' Wherever this Court has not proper jurisdiction to enforce specific performance, it operates to bind men's consciences, as far as they can be bound, to a true and literal performance of their agreements; and it will not suffer them to depart from their contracts at their pleasure, leaving the party with whom they have contracted to the mere chance of any damages which a jury may give. The exercise of this jurisdiction has, I believe, had a wholesome tendency towards the maintenance of that good faith which exists in this country to a much greater degree perhaps than in any other; and although the jurisdiction is not to be extended, yet a Judge would desert his duty who did not act up to what his predecessors have handed down as the rule for his guidance in the administration of such an equity." It is

1. (1883) 8 App. Cas., at p. 475. (3) (1852) 1 DeG. M. & G., at p. (2) (1878) 3 App. Cas. 709. 619; 42 ELR., at p, 693,

H.C. or A. true that the rule enunciated in Doherty v. Allman (1) is not limite nih to the protection of a legal right arising ex contractu. The rule _J.C. also be applied where the plaintiff has an equitable right to Md args enforcement of a restrictive covenant (Osborne v. Bradley (2); Lucey Elliston v. Reacher (3); Chatsworth Estates Co. v. Fewell (4) ). pea However, in view of my opinion that the acts done by the respondents would not amount to part performance within th meaning of the equitable doctrine known by that name, I do not deem it necessary to say whether it would be consistent with principle upon which the Court acts in enforcing a negative agr ment, to charge the defendant "upon the equities resulting from the acts done in execution of the contract" alleged to have bee made, "and not upon the contract itself," where the contract orally made and was within the category of agreements mentioned in the 4th section of the Statute of Frauds. : I am of opinion that the action should have been dismissed,

Appeal allowed. Judgment of Supreme Co discharged. Action dismissed. Respond to pay costs of appeal. The parties to ab their own costs in Supreme Court.

Solicitor for the appellant, Henry M. Lee. Solicitors for the respondents, Hedderwick, Fookes & Alston. (1) (1873) 3 App. Cas. 709. (3) (1908) 2 Ch. 374, at p. 3053

(2) (1903) 2 Ch. 446. aiid. 665. (4) (1931) 1 Ch. 224, at p. 233.