1. It is declared that there is not an enforceable agreement to lease between the parties.
2. The State of Queensland must file 4 copies in the Tribunal and serve 1 copy on the applicant of its written submissions about jurisdiction by 4pm on 17 October 2014.
3. The applicant must file 4 copies in the Tribunal and serve 1 copy on the State of Queensland of its written submissions about jurisdiction by 4pm on 31 October 2014.
4. Unless otherwise ordered, the Tribunal will hear the question of whether it has jurisdiction in relation to the dispute on the papers without an oral hearing not before 3 November 2014.

RETAIL SHOP LEASE - AGREEMENT TO LEASE - whether parties have a valid and enforceable agreement to lease - whether all essential terms agreed

Acts Interpretation Act 1954 (Qld), s 32C

Property Law Act 1974 (Qld), s 11, s 59

Copperart Pty Ltd v Bayside Developments Pty Ltd (1996) WAR 396

Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353

NZI Insurance Australia Ltd v Baryzcka [2003] SASC 190; [2003] 85 SASR 497

Watson v Delaney (1991) 22 NSWLR 358

Mr Russell Mervyn Moles and Ms Gwendoline Moles, directors of Castle Co Pty Ltd represented the applicant.

Ms M. H. Hindman of Counsel instructed by Crown Law represented the State of Queensland.

[1] Castle Co Pty Ltd trading as Redcliffe Hospital Courtyard Coffee Shop filed a Notice of Dispute seeking orders for specific performance of an agreement to lease reached with the State of Queensland, or alternatively, seeking orders for payment of a sum of money for loss and damage. The State of Queensland denies that there is an enforceable agreement to lease. It seeks in essence declarations that there is not an enforceable agreement to lease and that QCAT does not have jurisdiction, as well as its costs.

[2] At this stage, only the preliminary issue about whether there is an enforceable agreement to lease is before us for determination. For the reasons explained, we have concluded that although some agreement was reached, it is not an enforceable agreement to lease.

[3] The events leading up to, and indeed after, the unenforceable agreement are somewhat extraordinary.

[4] Castle Co has been operating a coffee shop at the leased premises since the lease was assigned to it in late 2008. The lease expired on 28 February 2013. Under the terms of the lease, the lessor was obliged to give at least 6 months, but not more than one year, notice of its intention either to offer a renewal or extension of the lease or informing the lessee that it did not intend to make such an offer.[1] It did not at any time comply with its obligation to do so, despite reminders from Castle Co's representative of the requirement.

[5] However, on 31 January 2012, Mr Moles, a director of Castle Co, met with, and provided to, a representative of the State of Queensland, Mr Garry Tweedie, a proposal for the grant of a new lease to Castle Co dated 20 January 2012.[2] Mr Tweedie was the Director of Corporate Services at Redcliffe Hospital for 12 years before his retirement in August 2013. The proposal included upgrading fitout. Mr Moles indicated that if required, he would obtain conceptual sketches of the proposed upgrade to fitout.[3] He says that Mr Tweedie said this was not necessary and he was not at any later time asked for them. Mr Tweedie recalls receiving the proposal, and believes he indicated that it would be considered. He expresses some concern about its vagueness (although does not suggest that he conveyed any such concerns to Mr Moles). He asserts that he did not believe it would be for him to negotiate a new lease.

[6] Mr Moles then, over an extended period of time, diligently followed up with Mr Tweedie, in relation to the offer and the intentions of the State of Queensland. He followed up with telephone calls, in meetings, and e-mails.

[7] Between February 2012 and October 2012, Mr Moles says that Mr Tweedie told him variously that, he expected a decision by the end of May; that a decision was delayed because of the general election; that a proposal would be made in September 2012; that he would follow up if he heard nothing within a week; and in October 2012, that he had passed it on to Property Management Services and that they would contact Castle Co soon.

[8] Mr Tweedie confirms the latter, saying he had told Mr Moles 'on several occasions' that he was not the decision-maker and that in due course it would be transferred to Property Management Services.[4] Broadly speaking, Mr Tweedie otherwise generally acknowledges having told Mr Moles from time to time that it was being looked at but does not indicate by whom and it does not appear from the evidence that it was considered by anyone over the February to October 2012 period. Mr Tweedie also says that he made it clear that he was a point of contact only not the decision-maker. We do not accept the latter for the reasons explained below.

[9] In late October, Mr Moles contacted Property Management Services and was informed that there was no record of information from Mr Tweedie. Later that day, a Mr Finn at Property Management Services told him that he had to discuss the proposal with Mr Tweedie. Essentially, Mr Finn said that all decisions about the lease were made by the hospital, that is, Mr Tweedie and his hospital committee. Once they had been made, details would be sent to Property Services to prepare the documentation.[5]

[10] Mr Tweedie apparently considered this an attempt by Mr Moles to 'bypass' him, and says it was intended that he would remain the initial point of contact.[6] The email correspondence between Mr Tweedie and Property Management Services representatives[7] makes it clear that Property Management Services expected all contact about the lease to be with Mr Tweedie's office and that Mr Tweedie, when he finally approached them, did so about lease documentation only.

[11] On 29 October 2012, in an email to Mr Tweedie, Mr Moles pointed out the requirement under the lease for the State of Queensland to give notice to the lessee of at least 6 months about its intentions.[8]

[12] Eventually, after more follow-up by Mr Moles, Mr Tweedie and Mr Moles met again on 2 November 2012. Mr Tweedie proffered a letter to Mr Moles from the Executive Director, Medical Services which referred to Castle Co's proposal for development of a new lease and 'confirmed' that Mr Tweedie had been requested to 'progress the preparation and negotiations for a new lease in consultation with all parties.'[9] Mr Moles says that during this meeting Mr Tweedie asked whether Castle Co was generally happy with the terms of the lease. Mr Moles said that he was. Mr Moles says that Mr Tweedie proposed that the new lease should be on the same terms except for the name of the lessee and the rent, saying that he would engage a local valuer for a market rental assessment and a local solicitor to prepare the lease document. Mr Moles agreed with all of these proposals.

[13] Mr Tweedie generally agrees with this except to say that he asserts that he told Mr Moles that someone else would negotiate the rent and finalise the lease.[10] This assertion appears inconsistent with a plain reading of the letter provided, which advises Mr Moles that Mr Tweedie is to negotiate the terms. It also appears to be generally inconsistent with the outline of events as set out in a briefing note later prepared in response to Mr Moles complaint to the Minister for Health.[11]

[14] Also, inconsistently, Mr Tweedie took numerous steps to progress the lease and deal with the rent issue.[12] In the days immediately after the meeting, Mr Tweedie obtained a Revenue Agreement concerning the proposed lease from the Chief Executive of Metro North[13] and provided a work request form to Property Services for lease documentation.[14] An email from lawyers asked to prepare documents to Mr Finn in Property Services (and copied to Mr Tweedie) refers to the lawyers being told by Mr Finn that Mr Tweedie was consulting with Knight Frank concerning market rent.[15] An email trail, including email from Mr Finn, confirms he made the assertion.[16] Also, Mr Tweedie's email to Mr Moles on 27 November says that he was awaiting market assessment.[17]

[15] While saying that he thinks Property Management Services suggested it, Mr Tweedie acknowledges that he did approach Knight Frank for a market rental assessment but Knight Frank indicated that as there were no market comparatives, it would not be a useful exercise.[18] This documentation trail and Mr Tweedie's actions in contacting Knight Frank tends to support Mr Moles version of events, as does the draft Amendment to Lease document containing the terms which Mr Moles says were agreed at the meeting and prepared after the meeting at Mr Tweedie's request.[19] Therefore, we accept Mr Moles evidence about what happened at the meeting of 2 November.

[16] Thereafter, Mr Moles regularly followed up on progress. On 27 November, Mr Tweedie advised him by email[20] that he had received the draft lease and was awaiting market rental assessment, saying that he would arrange a further meeting with Mr Moles once he received the market rental assessment. The draft lease highlighted the need for 2 items to be dealt with: namely, rent and, although an option had not at that point been proposed by Mr Moles or discussed, the type of rent review if the option was exercised.[21] The only reference, at this point, to an option (of 5 years) had been made by Mr Tweedie in the Revenue Agreement.

[17] Then on 12 December 2012, Mr Tweedie sent an email to Mr Moles advising that the 'final component' of the lease would need to be finalised early the following year. On 14 January 2013, Mr Moles emailed requesting an update. A meeting was arranged by Mr Tweedie for 24 January 2013.

[18] At that meeting, Mr Moles says that Mr Tweedie proposed that the new lease rental at $40,841.01 for the first year and that the lease be for 5 years with an option for a further 5 years. Mr Moles says he agreed to these terms. Mr Tweedie said he would email the draft lease which he said was '90%' complete after the meeting. Mr Moles says that although there was no specific discussion about the rent review in respect of the option, that he expected the same mechanism for rent increase during the lease term to be used, that is, 5% increase.[22] Also, during the meeting Mr Tweedie gave him a tax invoice for $17,870.07 for rent arrears,[23] accrued because the annual increases provided for in the existing lease document had never been invoiced as the lease term progressed. The calculation sheet refers to the new annual rental rate at 1 March 2013 of $40,841.01.

[19] Mr Moles says that he did not understand from his negotiations with Mr Tweedie that the negotiations were subject to a new lease being signed, although a new lease was of course to be signed embodying the terms agreed.

[20] Once again Mr Tweedie has a different version of events. In his affidavit, he says he impressed on Mr Moles that someone else would be negotiating final terms and that the starting point for minimum rent would be the $40,841.01 being the rent if increased in accordance with the current terms. He further says he does not recall discussing rent on the exercise of the option term. He denies any verbal agreement for a new lease.[24] Under cross-examination, however, he said somewhat inconsistently that he 'would have inferred' that someone else would be negotiating the final terms. He further said that the reference to annual rent of $40,481.01 on the calculations sheet was only the rent to apply while continuing to negotiate rent, although he was equivocal as to whether he had advised Mr Moles that he had not expected the lease to be completed by 28 February.

[21] Ultimately, we accept Mr Moles version of events. Firstly, clause 3.2 of the existing lease provided for the same rent as applied in the final year for any holding over period. Therefore, it seems inherently unlikely that Mr Moles would have agreed to pay more for holding over than the lease required. Secondly, it is, once again, more consistent with the events which followed. In particular, although Mr Moles then followed up requesting the draft lease documentation, he did not follow up about rent. Given his overall diligence in endeavouring to progress this lease extension or renewal, we accept that he understood all matters to have been agreed at the conclusion of the 24 January 2013 meeting.

[22] Also, Mr Tweedie went into the meeting knowing because of Knight Frank's advice that a market rent assessment was not a feasible mechanism to set rent. He arranged the meeting and went into it having had the opportunity to consider alternative bases for proposing the commencing rent in circumstances when the end date of the existing lease was imminent. With this background in mind, the calculation notes appear, consistent with Mr Moles version, to advance an alternative basis for the proposed commencing rent for a renewal or extension. Further, Mr Tweedie's equivocation about whether he articulated that the agreement was unlikely to be finalised by 28 February 2013, casts doubt on his version as does the contents of the briefing note prepared in early August which is discussed in later paragraphs.

[23] In any event, if he considered rent was still to be negotiated, Mr Tweedie might have been expected to respond to Mr Moles request for the lease document by pointing out, as he had previously that, that it could not yet be completed until matter/s were agreed. He did not.

[24] On 28 January 2013, Mr Moles emailed advising that he had not received the draft lease and requesting it so that 'due diligence' could be done.[25] Mr Moles does not have a legal background. He says that he meant reviewing the lease, making sure the lease terms were as agreed and that the names were correct. As our previous findings indicate, we are satisfied that he is an accurate and truthful witness generally. There is no basis to reject his evidence about this point and we accept it.

[25] On 22 February 2013, on the request of Mr Tweedie, Mr Moles and Mr Tweedie met. At this meeting, Mr Moles says Mr Tweedie advised him that the new lease had been taken out of his hands, was now with 'Metro North', and that someone would contact him the following week. He said that he expected Metro North would probably rubber stamp his work and complete the lease. Mr Tweedie denies the latter. He says, although it does not seem to be suggested that it was communicated to Mr Moles, that he had been requested to cease 'negotiations' until a further review was done. He apparently had some concerns and sought some legal advice[26] although he did not, in doing so, disclose the state of the negotiations to the lawyer whose advice he sought.

[26] Nobody from Metro North did contact Mr Moles the following week. On the final day of the lease 28 February 2013, he made contact with a Mr Don Bambry who told him that he intended to review the operation of the shop and requested to inspect it on 1 March 2013. During the inspection, Mr Moles pointed out that a new lease had already been agreed upon between him and Mr Tweedie, and also gave him a letter attaching some documents. Mr Bambry told Mr Moles that he was now in charge not Mr Tweedie. He said that another review would be done within a week.

[27] There was no advice to Mr Moles within a week. Mr Moles emailed Mr Bambry on 11 March, to be told in response that there was 'no news yet' because of other decisions being made at Metro North. On 1 May 2013, Mr Moles telephoned Mr Bambry. At this stage, Mr Bambry told him that a decision would be made by 30 June 2013. He followed up with Mr Bambry again on 1 July, to be told that there had been no decision as yet.

[28] On 9 July 2013, Mr Bambry and his assistant arrived unannounced at the coffee shop premises and asked to take photographs, which Mr Moles agreed to allow. They also re-inspected, discussed ownership of the equipment on the premises and possible cost of a refit. Mr Bambry said he would then update Mr Moles on a weekly basis. This did not happen. On 24 July 2013, Mr Moles telephoned him for an update, and was advised that a decision would be made by the end of July 2013.

[29] Having received no further advice from Mr Bambry, Mr Moles endeavoured to contact him on 1 August 2013. The call was returned on 2 August, when Mr Bambry advised that there was no news, as he had yet to obtain some further advice. Subsequently, Mr Bambry advised on 16 August and 6 September that there was no news. On 14 October 2013, Mr Bambry advised that Castle Co may receive correspondence that week.

[30] Eventually, on 29 October 2013, Castle Co did receive correspondence from the Director Commercial Activities from Metro North. It was advised, amongst other things, that there was no intention to offer Castle Co a renewal or extension of its lease; that it was proposing to seek offers to operate the premises by way of public tender; and that Castle Co must vacate the premises by 28 April 2014. Mr Moles telephoned Mr Bambry to enquire why, and was told 'it was nothing except that Castle Co did not give full details of the proposed refurbishment.'[27]

[31] In the meantime, at the end of March 2013, Mr Moles had made a formal complaint to the Minister for Health about what was termed the 'misleading and unconscionable conduct of Metro North' relating to the events that had transpired. Consistently with Mr Moles evidence, it asserts that Mr Tweedie had advised that a new lease was to be prepared on the basis of a 5 year term and 5 year option.

[32] The State of Queensland submits that the fact that he does not in the correspondence refer to the new agreed rental amount, or specifically assert that there is a binding agreement, is significant. However, Mr Moles is not a lawyer and had taken no legal advice at that point. We are satisfied that he used words in the sense that a lay person does. Mr Moles received some correspondence from various persons at Queensland Health from time to time concerning his complaint. There are various documents relating to this complaint in evidence, including a briefing note to the Minister for Health.

[33] Mr Tweedie deposes in his affidavit filed in the proceedings to having prepared the briefing note to the Director-General dated 5 August 2013.[28] The briefing note includes a statement that at the meeting on 24 January 2013, 'Mr Moles was given verbal advice that the new rental offer would be $41,000 per year' for the first year.[29] Mr Tweedie further deposes to this statement being inaccurate and says that events were as he now sets out.[30]

[34] In evidence at the hearing, Mr Tweedie asserted that in fact he had not prepared the briefing note, that it was prepared on his behalf. Mr Tweedie's significant recanting negatively affects his credibility and the weight to be attached to his statements about this. Further, the briefing note could only have been prepared on his instructions as he was the only person other than Mr Moles at the meeting on 24 January 2013. We conclude that he therefore gave the instructions as to the making of the rental offer. We ultimately consider that the briefing note as prepared in the months following the meeting with Mr Moles is more consistent with the events than Mr Tweedie's most recent version of events.

[35] There are three requirements for an enforceable agreement to lease.

[36] Firstly, the agreement to lease must be sufficiently certain as concerns the essential terms, in that it identifies the parties to the agreement; the premises concerned; the rent or how it is to be ascertained, if any;[31] the date of commencement and duration of the term;[32] and any rent review process.[33]

[37] Secondly, there must be an intention of the parties to be bound. The High Court has held that there are three classes of agreement where parties have reached a negotiated contractual agreement and it is to be formalised.[34] In some circumstances, the parties have reached agreement about all terms of the bargain and intend to be bound immediately, but propose to reduce the terms to a final document which will be fuller and more precise, although not different in effect. In other circumstances, the parties have completely agreed upon all terms of their bargain and do not intend to add or depart from them, but nevertheless make performance conditional upon execution of a formal document. The final class is where the intention is not to make a concluded agreement until and unless a formal document is executed.

[38] Finally, there must be some writing which satisfies s 11 and s 59 of the Property Law Act 1974 (Qld) or alternatively, sufficient acts of part-performance.[35]

[39] Having regard to the factual findings made by us, we are satisfied that at the meetings on 2 November 2012 and 24 January 2013, agreement was reached between Mr Moles as director of Castle Co and Mr Tweedie as the authorised representative of the State of Queensland that a further lease term was granted as follows:

• (a) For a term of 5 years with an option for a further 5 years;

• (b) Commencing from 1 March 2013;

• (c) At a starting rental of $40,821.01;

• (d) Annual rental increases of 5% for the remaining years of the lease term; and

• (e) Otherwise, (except in relation to the rent payable during the option which is discussed below) on the same terms and conditions as the previous lease.

[40] The only real issue outstanding is whether there was agreement about the starting rent for the option period. This requires discussion.

[41] Mr Moles says there was no specific discussion about the rent review in respect of the option. However, he expected it to be on the basis of 5% increase on the rent payable for the last term of the lease. In other words, he understood that all future annual increases in rent were to be 5% increases over and above the rental paid in the previous year.

[42] In November 2012, Mr Tweedie had intended to obtain an assessment of market rental. When he took steps to do so, he was told by the valuers whom he approached that this was a pointless exercise due to a lack of comparatives. We have accepted that he then instead proposed that the first year of the new lease be at an increase of 5% above the final year of the expiring term. All subsequent increases during the term were agreed at 5% because the existing lease provided for them and those same terms were to continue according to the agreement reached.

[43] The lawyers who had prepared the draft documentation had postulated market rent or CPI for the option period. Market rent had been ruled out by Mr Tweedie as a possible option, given the valuers' advice to him. CPI was not discussed.

[44] A 5% increase over and above the last year of the lease term, for the first year of the option period is consistent with the annual increases and the terms of the lease. This is the apparent basis for Mr Moles expectation about a 5% increase for the first year of the option term. However, he does not point to anything said, or discussed, which gave him this view, only that it was his expectation because all other increases were to be 5% over and above the rental for the previous year. Mr Moles says no more than that it was his expectation, even though in the circumstances, it appears that it may have been an apparently reasonable one.

[45] The law is clear. There is no basis for a court (or, by analogy, a tribunal) to determine how an annual rent review (or by analogy, rent increase/review on exercise of an option) should be made.[36] It can not be said here, that the parties had agreement about the mechanism for rent increase/review on exercise of the option. That being the case, we conclude that there is not certainty about the essential terms agreed.

[46] Therefore, there is not an enforceable agreement to lease.

[47] Having come to this conclusion, we make orders declaring that there is no enforceable agreement to lease.

[48] In the event that we reached this conclusion, the State of Queensland in its written submissions handed up at the hearing seeks orders declaring that QCAT does not have jurisdiction. Jurisdiction was not listed for hearing as part of this preliminary hearing and has not been addressed in Castle Co's written submissions also handed up at the hearing. Castle Co is entitled to be heard on the issue.

[49] We direct the State of Queensland to file and serve its written submissions about jurisdiction within 14 days. We also direct Castle Co to file and serve its written submissions about jurisdiction of the Tribunal in light of our declaration within 35 days of these orders. Unless otherwise ordered, the question whether the Tribunal has jurisdiction will be heard on the papers without an oral hearing.

[50] Having reached these conclusions, we do not need to decide the two other issues. However, in case we are wrong (and our decision is appealed) about whether the terms are certain, we make the following observations.

Did the parties intend to be bound? If so, which Masters v Cameron class does it fall into?

[51] Castle Co submits that the agreement here falls into the first of the classes identified by the High Court in Masters v Cameron and that therefore the agreement reached was binding from 24 January 2013 when the final outstanding matters were agreed. The State of Queensland submits that it falls into the third class.

[52] The intention of the parties must be objectively ascertained. If all terms are certain, we would accept that the agreement falls into the first class identified in Masters v Cameron. We would be satisfied that the parties intended to be bound immediately.

[53] Mr Tweedie was able to reach a binding agreement on behalf of the State of Queensland. The letter of the Executive Director, Medical Services, confirmed his authority. We have rejected his evidence that some other person would finalise the lease, other than that someone else would prepare the documentation to embody the agreement reached. The terms agreed differed in only minor respects from the existing lease terms, and were not to be different, except in those minor respects discussed.

[54] There is no evidence which suggests that the parties intended to make their agreement conditional upon the execution of a formal agreement once agreement had been reached, although the agreement was to be recorded in writing.

[55] Castle Co does not allege that there has been part-performance.

[56] The Property Law Act 1974 (Qld) provides relevantly that:

• (a) an interest in land can be created only by writing signed by the person creating or conveying it, or the person's agent lawfully authorised in writing;[37] and

(b) that any contract for the disposition of land or any interest in it is unenforceable unless there is 'some written memorandum or note of the contract,' which 'is in writing,' and signed by the person to be charged or some person lawfully authorised.[38]

[57] Castle Co submits that the Revenue Agreement (which contains the terms except the rental amounts) signed by the Chief Executive on 5 December 2012 and the calculation sheet (although that document is not signed) which records the commencing rental for the first year are adequate. Alternatively, it argues that the (signed) briefing note, which sets out the rental, in combination with the Revenue Agreement, are adequate writing.

[58] The State of Queensland submits that the documents relied upon are not relevant, because none of them contains a complete note and, in respect of the briefing note, it was prepared for an entirely different purpose.

[59] The Acts Interpretation Act 1954 (Qld) provides that words in the singular (in this case, memorandum or note) include the plural: s32C. We would conclude therefore that multiple documents may be adequate to satisfy the requirement for writing. We observe also that in other circumstances, multiple documents have been found to be adequate.[39]

[60] Does it matter whether the documents which evidence the agreement were produced for the purpose of evidencing the agreement or some other purpose? We were not referred to any relevant authorities. The Revenue Agreement identifies the land to be subject to the lease, the parties, the start and end dates, the option period, most of the terms (in terms, 'as per present lease'), but not the rent, which is 'to be reviewed.' It is signed by Professor Keith McColl, Chief Executive, Metro North & Health Hospital Service. He is not the agent nominated for the Health Service in the letter provided to Mr Moles. That said, despite the authorisation given to Mr Tweedie in the earlier letter, the Revenue Agreement states that for leases, the approval of the Chief Executive or equivalent to the proposed terms was required. The terms of the letter suggest that it had earlier been given, but in any event, the Revenue Agreement confirms that his approval was given. There is no doubt that as Chief Executive of Metro North, he was able to bind the State of Queensland and did in fact give his authorisation.

[61] The calculation sheet is not signed. However, the briefing note, although created for a different purpose is signed by Dr Tony O'Connell, the then Director-General of the Department of Health. As its chief executive, he clearly had authority to bind the Department. On its face, it confirms the unsigned calculation sheet and Mr Moles assertions about the agreement as to rental amount for the first year of the lease period.

[62] If we were satisfied that the essential terms of the agreement to lease were certain, we would have accepted the combination of these documents may be sufficient memorandum or note of the contract, signed by duly authorised persons on behalf of the State of Queensland if the essential terms were contained in them. However, there is no reference to the rental for the first year of the option term. This is an essential term of the agreement, and therefore, we would not be satisfied that the relevant provisions of the Property Law Act 1974 were satisfied.

[63] Therefore, we would, in any event, have found the agreement to lease unenforceable for lack of adequate writing.

[2] Exhibit 1, paragraph 3 and pages 90 to 107.

[9] Exhibit 1, paragraph 15-16 and page 113.

[11] Exhibit 3, GT 15, especially paragraphs 10-11.

[13] Exhibit 3, pages 15-17 dated 5 November 2012.

[19] Exhibit 3, paragraphs 31-35 and GT 9.

[20] Exhibit 1, paragraph 18 and page 114.

[23] Exhibit 1, paragraph 24-24 and pages 117-118.

[25] Exhibit 1, paragraph 26, and page 119.

[26] Exhibit 3, paragraph 46 and GT 11.

[31] Copperart Pty Ltd v Bayside Developments Pty Ltd (1996) WAR 396, at 408 relying upon Whitlock v Brew [1968] HCA 71; (1968) 118 CLR 445 at 454.

[32] NZI Insurance Australia Ltd v Baryzcka [2003] SASC 190; [2003] 85 SASR 497 at 506.

[33] Copperart Pty Ltd v Bayside Developments Pty Ltd (1996) WAR 396, at 408; NZI Insurance Australia Ltd v Baryzcka [2003] SASC 190; [2003] 85 SASR 497 at 506.

[34] Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353, at 360.

[35] Watson v Delaney (1991) 22 NSWLR 358 at 366.

[36] NZI Insurance Australia Ltd v Baryzcka [2003] SASC 190; [2003] 85 SASR 497 at 506-507.

[37] Property Law Act 1974, s 11(1)(a).

[38] Property Law Act 1974, s 59.

[39] When considering proposed appeal grounds including that a cheque from a purchaser and a receipt from a vendor was insufficient to constitute a memorandum or note in writing sufficient for s 11 and 59, the Court of Appeal of the Supreme Court of Queensland (although considering there was doubt about whether the sale of marina berth was an interest in land) did not criticise the finding that multiple documents may be sufficient: Bradshaw v Henderson [201] QCA 008, at paragraphs [6-7and 21-28].