When Captain James Stirling established the Swan River Colony at Perth in 1829, he brought with him as ‘received law’ all of the general statutes of England that were in force at that time. But with Land Contract Disputes – Ye Olde Requirements For Writing Have Byte In A Digital World.
Only a few of those provisions still survive, but one is section 4 of the Statute of Frauds 1677 which, for 186 years has had the effect of requiring that for certain types of contract to be legally enforceable in Western Australia, they have to be recorded in writing and signed by the person to be bound.
Similar requirements for writing and signature are also found in section 4 of the Sale of Goods Act 1893, and section 34 of the Property Law Act 1969.
These days, the most important practical application of these formal requirements is in relation to contracts (or alleged contracts) involving dealings with interests in land.
Modern Law
In 2011, the WA Parliament modernised the definition of what would be an acceptable legal form when it enacted the Electronic Transactions Act 2011.
In substance, section 10 of that Act provides that if a WA law has a requirement for the signature of a person, then that requirement will be met in relation to an electronic communication if:
- (a) A method is used to identify the person, and to indicate the person’s intention in relation to the information communicated; and
- (b) The method used is sufficiently reliable having regard to the circumstances of the communication (or the method is proven as a matter of fact to have complied with the requirements of paragraph (a)); and
- (c) The person to whom the signature is required to be given consents to the requirement being satisfied by the use of the method described in paragraph (a)).
Old Law in a Modern World – a Case Study
In a recent WA Supreme Court decision (Claremont 24-7 Pty Ltd v Invox Pty Ltd [2015] WASC 220 – delivered 17 June 2015), it was held that section 10 of the Electronic Transactions Act applied to the Statute of Frauds and Property Law Act requirements for writing and signature in relation to contracts involving interests in land.
Importantly, the Judge found that an email sent by a director of a land owning company indicating acceptance of terms to be included in a formal offer to lease was sufficient to bind the company to an agreement to enter a lease on the terms offered.
This outcome was no doubt an unpleasant surprise for the director who, in the absence of a formal written offer being signed, had gone on to separately negotiate and conclude a formal lease with another party.
In the result, the Court found that both agreements were enforceable, and the landowner company suddenly had a damages problem!
Land Contract Disputes – Ye Olde Requirements For Writing Have Byte In A Digital World.
Land contract disputes can be complicated, and a bad result can be expensive.
If you have a land contract dispute, or want some advice to help avoid one, contact Tim Retallack or Charles Clifton (Litigation) or Marcus Easthope or Christian Hofferberth (Property) at Culshaw Miller Layers in Perth or Adelaide today for more information.
Perth: (08) 9488 1300 or email
Adelaide: (08) 8464 0033 or email