Has the Statute of Frauds been rendered nugatory?

Abstract

The Statute of Frauds and Perjuries 1677 s 4, which requires the terms of oral guarantees to be recorded in writing, has been imported and retained by certain overseas jurisdictions, including Western Australia. Along with this statutory requirement, the attendant issue of the extent to which equity may intervene to allow enforcement of an imperfect guarantee has been transplanted. Typified by the House of Lords decision in Actionstrength Ltd v International Glass Engineering [2003] UKHL 17; [2003] 2 AC 541, English courts have generally adopted a restrictive approach to equitable estoppel, particularly regarding the application of this doctrine to the Statute of Frauds. Since the landmark case of Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387, Australian courts have generally adopted a wider approach to equitable estoppel and one seemingly incompatible with English law in this regard. The recent case of Tipperary Developments Pty Ltd v The State of Western Australia [2009] WASCA 126 confirmed that equitable estoppel could specifically outflank the Statute of Frauds. This decision appears to widen the gap between the two conceptions of equitable estoppel still further, and raises the question whether the Statute of Frauds has been rendered nugatory in Western Australia, if not elsewhere. This note discusses Tipperary Developments and considers these possibilities.