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Edgeworth, Rossiter, O’Connor &

READING
Godwin, Sackville & Neave Australian
Property Law, 10th ed, 2016 Ch 4
‘The Acquisition of Property Rights and
Equitable Property’ [4.38]–[4.42C],
[4.43]–[4.50]
The equitable doctrine of part performance
4.38 Despite the requirement of signed writing for contracts for the sale of land, contracts
that fail to meet the requirements may nonetheless lead to the parties being bound in equity
under the doctrine of part performance. The following cases demonstrate the scope of its
operation.

4.39C Mason v Clarke

[1955] AC 778; [1955] 1 All ER 914
House of Lords

[The appellant company, Shepton Mallet Transport Ltd, owned a certain agricultural estate.
The respondent, Clarke, was a yearly tenant of a portion of the estate. The lease specifically
reserved to the company the right to hunt for game on the estate. The company orally agreed
with the appellant Mason that he should have the right to kill and take rabbits on the estate.
Clarke prevented Mason from exercising his rights under the oral agreement with the
company. Both Mason and the company commenced proceedings against Clarke, seeking
injunctions to restrain further interference and damages for trespass. Croom-Johnson J gave
judgment for the plaintiffs (ie the company and Mason), but his order was reversed by the
Court of Appeal.]
Lord Morton of Henryton: [His Lordship decided that the company was entitled to an
injunction. He proceeded:]
I now turn to the position of Mr Mason. It is clearly established by oral evidence that, on
11 October 1950, an oral agreement was entered into between the company, acting by its
duly authorised agents, and Mr Mason, whereby it was agreed that, in consideration of £100,
Mr Mason should have the right to kill and take rabbits on the Hothorpe Estate for a year from
11 October 1950. That right was, of course, a profit à prendre. The £100 was paid on the
same day. It is also clearly established by oral evidence that, on 14 October, in exercise of his
right under the agreement, Mr Mason went on the Hothorpe Estate and set snares thereon for
the purpose of catching rabbits, and returned next day with two men, employed and paid by
him, to take rabbits. It is also beyond dispute that the respondent interfered with Mr Mason’s
exercise of his rights under the agreement by the acts already described by my noble and
learned friend on the Woolsack, and thereby caused damage to Mr Mason.
A profit à prendre is an interest in land, and no legal estate therein can be created or
conveyed except by deed: Law of Property Act 1925, s 52. At the time when the respondent
did the acts of which complaint is made, there had been no grant by deed of the profit a
prendre to Mr Mason, but prima facie he had the benefit of an oral agreement for the grant
thereof, and he had entered into possession thereof in the only possible way, viz by exercising
his rights thereunder.
It is said on behalf of the respondent, first, that the agreement was so tainted with fraud
that it was ineffectual to confer any enforceable rights; secondly, that the agreement, on its true
construction, did not confer any right to lay snares in the open fields let to the respondent, and
thirdly, that, at the time when the respondent did the acts in question, Mr Mason’s agreement
with the company was unenforceable by action, because there was no memorandum or note
thereof in writing sufficient to satisfy s 40 of the Law of Property Act 1925.

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4.39C Sackville and Neave Australian Property Law

My Lords, the first two of these arguments have already been fully dealt with in the speech
from the Woolsack and I desire to add nothing in regard to them. As to the third argument,
I am inclined to agree that there was no sufficient memorandum until 30 December 1950,
but it is unnecessary to examine the relevant documents in detail, because I am quite satisfied
that the acts of Mr Mason, already described, were a part performance of the oral agreement
of 11 October 1950. Mr Mason set snares, took rabbits and paid helpers, and, in my view,
the work done and the expense incurred were exclusively referable to the oral agreement.
Accordingly, at the relevant time Mr Mason had a contract, specifically enforceable against the
company, for the grant of a profit a prendre and had entered into possession thereof. In these
circumstances, he was clearly entitled to bring an action for trespass against the respondent …

[Viscount Simonds, Lord Oaksey, Lord Reid and Lord Keith of Avonholm delivered
judgments agreeing with Lord Morton on this point.]

4.40 Questions
Was the interest obtained by Mason as a result of his acts of part performance an
equitable interest or a legal interest? If his interest was equitable, why was he entitled to
damages for trespass? In Moreland Timber Co Pty Ltd v Reid [1946] VLR 237 the Full
Court held that because the profit arose from an agreement and was not granted in the
form of a deed, it was equitable only, and for that reason could not attract the common
law remedy of damages.

4.41 There is considerable authority concerning the equitable doctrine of part performance,
the leading case being Maddison v Alderson (1883) 8 App Cas 467. In McBride v Sandland
(1918) 25 CLR 69 at 77–9, Isaacs and Rich JJ stated the essentials of the doctrine in the
course of resolving a bitter dispute between a father and daughter involving an alleged oral
contract of sale.

4.42C McBride v Sandland

(1918) 25 CLR 69
High Court of Australia

Isaacs and Rich JJ:

In Maddison v Alderson Lord Selborne LC, in a passage now classical, stated the result of the
authorities to be that in a suit founded on part performance of a parol contract relating to land
the defendant is really charged ‘upon the equities resulting from the acts done in execution of
the contract, and not (within the meaning of the statute) upon the contract itself’. It is clear
from what the learned Lord Chancellor says, that in such a case the court is not asked to give
a better remedy in aid of a legal right, based on the contract, but is called upon to enforce an
equity (independent of the statute, as Story observes — Equity Jurisprudence, p 754) which
has arisen by force of circumstances subsequent to the contract itself, namely, by acts of
part performance sufficient to attract the equitable jurisdiction of the court. Lord O’Hagan, in
the same case, pursues the principle further by pointing out that the proper course in such
proceeding is that of ‘seeking to establish primarily such a performance as must necessarily

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