Penrith Whitewater Stadium Ltd & Anor v Lesvos Pty Ltd & Anor

The application of s 54A(1) of the Conveyancing Act to the Café contract 28 Mr Street submitted that as, at the time of the transaction, neither appellant had an interest in the land or any contractual right to acquire an interest in the land, the Café contract was not a contract for the disposition of any interest in land and s 54A(1) did not apply to it . 29 In Powercell Pty Ltd v Cuzeno Pty Ltd (2004) 11 BPR 21,429 (in a judgment dismissing an appeal from a decision of Campbell J - as his Honour then was - in Powercell Pty Ltd v Cuzeno Pty Ltd (2003) 11 BPR 21,385), Giles JA (with whom Meagher and Santow JJA agreed) observed (at 21,434, [29]) that s 54A(1) "substantially re-enacted s 4 of the Statute of Frauds 29 Car II cap 3". 30 In Horton v Jones (1935) 53 CLR 475, Starke J said (at 489): "The Statute of Frauds is directed to agreements concerning, covering or extending to lands or interests therein, whether the contracting party has title to them or not."

There are many authorities, at every level, which support this statement. 31 In Horsey v Graham (1869) LR 5 CP 9, the plaintiff wished to obtain an assignment of a lease of a certain public house. He agreed with the defendant (a hotel broker) that the latter would obtain the lease for a nominated price and convey it to the plaintiff for that price. The defendant had no legal right in the public house. The Court of Common Pleas held that such a contract must be evidenced in writing under s 4 of the Statute of Frauds, even though the person who thereby undertook to sell the property had no interest in it. 32 Brown v Robertson (1890) 16 VLR 786 should be noticed. In this case, a number of persons agreed to endeavour to acquire property. None had any interest in the property to be acquired. The Full Court of the Supreme Court of Victoria held that the Statute of Frauds did not apply. The Court did not disagree with Horsey v Graham but distinguished it. 33 The preferable explanation for Brown v Robertson is, as Williams J said at 790, that the agreement concerned was "not an agreement to purchase at all". Rather, as his Honour observed, "it is an agreement to endeavour to purchase if they can". This explanation was accepted by Williams J of the Full Court of the Supreme Court of Queensland in Riches v Hogben [1986] 1 Qd R 315 (at 336) and Campbell J in Powercell (2003) 11 BPR 21,385 (at 21,414, [116]). 34 In McBride v Sandland (1918) 25 CLR 69, the agreement concerned was between a father, on the one hand, and his daughter and her husband, on the other. The father agreed that, should he purchase certain property at an auction, his daughter would have the right to "take" the property at his death, subject to her paying five per cent of the purchase price paid by the father. The parties also agreed that, should the father acquire the property, the daughter and her husband could have possession "as soon as the purchase is complete" (at 92 per Higgins J).