High Court Upholds Doctrine of Part Performance in Pipikos v Trayans [2018] HCA 39

Thursday 13 September 2018 @ 9.08 a.m. | Judiciary, Legal Profession & Procedure | Legal Research

On 12 September 2018, the High Court unanimously dismissed an appeal related to property ownership and part performance in the case of Pipikos v Trayans [2018] HCA 39. The High Court reaffirmed the principle that actions relied upon to demonstrate part performance must be unequivocally referable to the alleged agreement.


The respondent, Trayans, is the former sister-in-law of the appellant, Pipikos. In 2002, the respondent purchased a property at Clark Road, Virginia, South Australia with her then-husband. The respondent was the sole registered owner of this property. The respondent and her husband made improvements to that property. In 2004, the respondent, the husband, the appellant and his wife jointly purchased another property at Taylors Road, Virginia, South Australia, which was bought by contributions from all parties and a bank loan. The appellant and his wife held a half-interest in that property. The other half was held by the respondent’s husband alone. Later in the same year the couples purchased another property at Penfield Road, Virginia, South Australia and it was financed partially through a bank loan. The appellant and his wife paid the deposit and the balance of the purchase price.

In 2012 the appellant sought a declaration in the District Court of South Australia in . He sought a declaration that the respondent held a half-interest in the Clark Road property on trust for him. Alternatively the appellant claimed an order that he be registered as a joint proprietor of one half of the Clark road property. In alleging this, the appellant claimed that in July 2004, he and the respondent’s husband had agreed that the appellant would accrue half of the respondent’s interest in the Clark road property for $45,000. This was to be paid by funding the respondent and her husband’s share in the purchase of the property on Penfield Road. There was no formal evidence of this agreement, apart from a handwritten note from the respondent, and therefore this agreement did not meet the formality requirements enshrined in the Law of Property Act 1936 (SA) section 26(1). The appellant argued that the doctrine of part performance entitled him to an order of specific performance. The trial judge dismissed this claim in Pipikos v Trayans [2015] SADC 149. She held that there was no contemporaneous record of the agreement and no attempt by the appellant to register or record the alleged interest. She also observed that there was a degree of uncertainty in relation to the terms of the alleged agreement in the note as to the parties, the agreement, and its specific terms.

Following this, the appellant appealed to the Full Court of the Supreme Court of South Australia. The Full Court  dismissed the appeal from the primary decision in Pipikos v Trayans (2016) 126 SASR 436, holding that the requirements of the doctrine of part performance had not been established by the appellant.

The appellant then appealed to the High Court by special leave. He raised the grounds that it was sufficient for a contracting party seeking specific performance of a parol contract to demonstrate that they had been knowingly induced by the other party to alter their position on the intention of the contract.

Decision of the High Court

Chief Justice Kiefel and Justices Bell, Gageler and Keane provided a summary of the law of part performance:

[4]‘In Maddison v Alderson, the Earl of Selborne LC said that "the acts relied upon as part performance must be unequivocally, and in their own nature, referable to some such agreement as that alleged".'

They contended that neither party performed any actions that were unequivocally referable to a sale related to the Clark Road property, and therefore dismissed the appeal.

Justices Nettle and Gordon, after summarising the law relating to the doctrine of part performance, held that the appellant’s contention should be rejected. In a separate judgement, Justice Edelman noted that the requirement that the actions must be unequivocally referable to the alleged agreement has been a consistently accepted statement of the law. In agreeing with the joint judgement of Chief Justice Kiefel and Justices Bell, Gageler and Keane, he stated:

[159] ‘The need for the acts to be unequivocally referable to "some such agreement as that alleged" requires only that the acts be referable to an agreement "of the general nature of that alleged". For instance, the giving or taking of possession will generally be a sufficient act of part performance of a contract for the sale of land, even though it is an act that may be equally referable to a contract of lease. It is unnecessary to explore these issues on this appeal. As Kiefel CJ, Bell, Gageler and Keane JJ explain, the appellant's acts were consistent with transactions other than those of the general nature of a sale of the Clark Road land. The appellant conceded in oral submissions that the acts were not unequivocally referable to a contract of the general nature of a sale of that land. The appeal must be dismissed and the order made as proposed by Kiefel CJ, Bell, Gageler and Keane JJ.’

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Pipikos v Trayans [2018] HCA 39 and judgement summary.

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