Everything must be in writing

  • Author : Robert Hay QC - 03-07-2011

It is extraordinary how often lawyers overlook the cardinal rule when dealing with land: anything intended to have legal effect must be in writing. 

See: s.53 of the Property Law Act 1958 and s.126 of the Instruments Act 1958. The most overlooked rule appears to be that where an agent is to sign a contract or enter into an agreement that will affect an interest in land the agent must also be authorised in writing to sign the contract or enter into the agreement.  In Federation Properties Pty Ltd v Tzioras [2001] VSC 135 Byrne J held that a contract for the sale of land was unenforceable because the agent who made the contract had not been authorised in writing. Lawyers settling court proceedings should be particularly careful about ensuring that they have written instructions to sign terms of settlement. See: Grummitt v Natalisio  [1968] VR 156; Collin v Holden [1989] VR 510.

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Robert Hay QC

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