"Section 3 provides that all leases, estates, and interest in freehold or term of years assigned granted or surrendered must be by deed or note in writing signed by the grantor or his agent or by operation of law."
BUT WAIT, MZN thinks it can rely on phone calls??!
"The fate of one of the biggest lithium deposits in WA is set to rest on whether the Supreme Court finds the content of an email exchange and telephone call constitutes a contract for the sale of lithium rights to Kidman Resources’ Earl Grey project."
Fair to say that KDR's lawyers will have picked this apart from every angle.
While an email exchange can form a contractual agreement (where the law of agency is satisfied), such an exchange would still need to satisfy the elements of certainty, completeness and intention to create legal relations.
Intention is not subjective, but based on whether a reasonable person in the circumstances would consider themselves to be bound contractually.
Completeness is where things really fall over, as an agreement to form a contract cannot be binding where no date or deadline is set for forming the contract. This is because business conditions change daily, weekly, monthly etc. It would be like selling your family home without nominating a settlement date.
Finally, even if there was an agreement to form a contract, that agreement to form a contract would be considered abandoned if not actioned within a 'reasonable time'. MZN sat on this for a number of months, which is not a reasonable time. 2-4 weeks would be a reasonable time.
Much comes down to 'certainty' and whether the agreement to form a contract was sufficiently certain. Absent a contract effective date or a settlement date or a fixed schedule of royalties etc (I don't know how it works, by you can imagine)... -Absent these things and many more (ie. all the key terms that you'd expect in a contract of this nature) there is no 'certainty' and hence no 'contract'.
The courts are loathe to imply terms in a contract as such would erode the very principles the Statute of Frauds was designed to protect.
"Agreements to enter into a future agreement are not binding."
