Dennis v Dennis
[1971] HCA 50
•3 November 1971
Cur. adv. vult.
The following written judgments were delivered:—
The appellant was the defendant in a suit in Equity in the Supreme Court of New South Wales brought by the respondent claiming a declaration that the respondent was a co-owner in common with the appellant of a racing horse known as "Harwood Brigade". The respondent by his statement of claim asserted that it had been agreed between the parties that in consideration that the respondent would train and maintain the horse at his own expense, he should be entitled to one half of the prize money which the horse might win, one half of the price obtained for the horse if and when sold and a half interest in the horse itself then the sole property of the appellant. By his statement of defence the appellant denied that the respondent had obtained any interest in the horse. He conceded that he had agreed that whilst the respondent trained the horse, he, the respondent, should pay him one half of the winnings of the horse and that he the appellant would pay the respondent one half of the sale price of the horse if sold during that time.
Pursuant to whatever agreement was made by the parties the horse was passed into the possession of the respondent to be trained. It was maintained and trained by the respondent until December 1968. During that time the horse did win prize money which according to the custom of the industry was paid to the respondent as the trainer of the horse. The respondent paid one half of such prize money to the appellant. In December 1968 the appellant removed the horse from the respondent's custody and placed it in the hands of another trainer. For a period after December 1968 the horse was under a disqualification. But thereafter it raced and won considerable sums by way of prize money. But no part of this money has been paid to the respondent. Apparently the horse had not yet been sold by the appellant.
The suit was heard by a judge sitting in Equity. Both the appellant and the respondent gave evidence, each giving an account divergent in some respects from the other's account of the conversation in which the arrangements between them were made. An official of the Trotting Club gave evidence of statements made to him by the respondent in the course of an enquiry into the running of the horse. The primary judge accepted the evidence of this official of the Trotting Club. Although he thought both plaintiff and defendant honest he did not accept completely the evidence which either of them gave of the conversation which was the foundation of the respondent's claim to be a half owner of the horse. His Honour relying to a large extent upon the evidence of the official of the Trotting Club specifically found the terms of this conversation. I set out each of the two forms in which his Honour expressed what he believed passed between the parties.
No other evidence given at the hearing of the suit bore directly on the question of the respondent's claim to be the part owner of the horse but some of it did so indirectly. The primary judge having decided the terms of the basic conversation between the parties found that both parties intended that the respondent should become a part owner of the horse. He said that whether or not they had any such intention was to be determined by what they had said to each other understood against the background of the circumstances.
In examining the evidence other than that of the said conversation, his Honour found part of it which tended to support an intention to create a co-ownership in the horse and other parts of it which he found not inconsistent with such an intention. In the result he found that the respondent was the half owner of the horse in common with the appellant as the result of the conversation which I have set out. The circumstances which formed the background of this conversation may be taken to be that the horse at that time was untrained and needed considerable time, money and effort being expended upon it to bring it, as it was said, to "racing pitch". In fact the time occupied in so doing was some nine months. The respondent did in fact spend a great deal of time money and effort to prepare the horse for racing. The horse throughout remained registered with the Trotting Club. For the greater part of the time it was trained by the respondent, the horse was raced in the name of the appellant as owner.
The learned judge appears to have concluded either that the legal consequence of the conversation between the parties was that the respondent obtained a proprietary interest in the horse or that the proper inference to be drawn from the conversation was that a transfer of a proprietary interest from the appellant to the respondent was intended to be effected by the parties.
The appellant in this appeal does not challenge the finding of the primary judge as to what was said between the parties in the relevant conversation. He submits however that it is not possible either to infer from the language used by the parties that their words were intended to and did effect a transfer to the respondent of a proprietary interest in the horse or that as a matter of law it could follow from those words that there was a transfer of such a proprietary interest. The respondent on the other hand submits the contrary laying stress on the circumstances to which I have already adverted.
In my opinion. it could not be concluded that the legal consequence of the language found by the primary judge to have been used between these parties was a transfer of a proprietary interest in the horse to the respondent. Nor, in my opinion, could it be inferred from such language in the circumstances of the case that there was an intention on the part of the appellant to transfer to the respondent a proprietary interest in the horse. Indeed, in my opinion, the language points in the opposite direction. It is not a necessary consequence of a promise by its owner to pay to another one half of the proceeds of the sale of a chattel that the promisee thereupon and by virtue of that promise becomes a co-owner of a chattel. On the contrary, in my opinion, the promise to pay one half of the proceeds of the sale of the chattel denies that the promisee is entitled to those proceeds as an owner: he becomes entitled to them only as a promisee. Further, if the association between the parties in respect of the horse and its racing is regarded as in the nature of a joint venture, the purposes of the parties would be fully met by the payment of the one to the other of one half of the prize money won by the horse and by the sharing of the price of the horse when disposed of. Given a promise covering these payments there would be no need in my opinion for any transfer of property in the horse in order to secure the purposes of the parties. One would contribute his labour and the other the use of the horse. Nothing in the conversation suggests that the appellant was to part with the ultimate control of the horse or that he was admitting the respondent to share that control, beyond the training of the horse. In my opinion, there was no material established in the case on which it could properly be found that the respondent was a co-owner of the horse in common with the appellant. For that reason the declaration made by the primary judge cannot be supported and must be set aside.
The primary judge having made a declaration as to the proprietary interest of the respondent in the horse proceeded to order an account of the amount of prize money received by the appellant after he had removed the horse from the possession of the respondent in December 1968, and an account of the outgoings of the appellant in connexion with the horse during a somewhat different period to the period over which the account as to prize money was ordered. I am not clear myself as to the basis on which such an account could have been ordered even assuming that the declaration as to the proprietary interest of the respondent in the horse had been made out. But I have no need to pursue the matter because it is plain that the accounts ordered to be taken by the primary judge were conceived by him as consequential upon the declaration of proprietary right which he had made. It seems to me that if the declaration is set aside so must the order for the taking of accounts.
The respondent's counsel submitted that, if the Court should be of opinion that upon the issues which had been raised by the statement of claim and statement of defence the respondent should fail, the Court should give effect in some way to an agreement between the parties which could be found upon the conversation between the parties as expressed by the primary judge. But, in my opinion, this Court is not authorized now to convert what was a suit for a declaration of a proprietary interest in the horse into a suit for a declaration as to a contract between the parties, which as matters stand at present would merely found a right of action at law in debt for a share of prize money won by the horse after it had been removed from the respondent's possession. This Court of course may do what the Court below ought properly to have done upon the issues which were before that Court; but this Court is not warranted, in my opinion, in reforming the suit so as to give some relief which the Court might think could have been obtained by the respondent if his suit had originally taken the form into which this Court might convert it. No doubt the evidence which was put forward by the respondent as supporting his claim to a proprietary interest in the horse might possibly have been put forward as the basis of a contract to pay money, though in terms the promise of which evidence was given was not of a promise by the appellant to pay a share of prize money but of a promise by the respondent to pay money to the appellant. However, the conversations were not put forward by the respondent as evidence of an agreement to pay money but as evidence of an immediate transfer of a proprietary right from the appellant to the respondent. Consequently several questions as to the terms of any contract to pay money were not examined by the primary judge. This Court, in my opinion, should not attempt to reframe the suit and to try an issue not so far litigated by the parties.
In my opinion the appeal should be allowed, the declaration and orders of the Supreme Court set aside and in lieu thereof it should be ordered that the suit be dismissed.
The plaintiff, the present respondent, sued the defendant, the present appellant, in the Supreme Court of New South Wales in Equity for a declaration that the plaintiff and the defendant were, and had since April 1967 been, the owners in common of a trotting horse called "Harwood Brigade", and for consequential relief. The plaintiff succeeded; the critical order was made as sought, an account of the prize money won by the horse since 1968 was directed, and an order was made for payment by the defendant to the plaintiff of one half of the prize money found to have been won, less certain expenses.
The declaration of co-ownership was founded upon a conversation between the plaintiff and the defendant in April 1967. The horse, which was not then in racing condition, was owned by the defendant. The plaintiff was a trainer. There were, as his Honour the learned trial judge pointed out, three versions of the critical conversation—two by the plaintiff and one by the defendant. His Honour regarded both parties as honest witnesses, and, although he thought that the plaintiff's recollection was more reliable than that of the defendant, he was not prepared to accept the evidence of either of them without some qualification, and, as will be seen later, expressly rejected some of the evidence given by each of them.
The conversation as found by his Honour was as follows:
His Honour also found that the defendant had on two occasions spoken of the plaintiff as having a half share in the horse or as of owning half the horse. However, his Honour quite rightly thought that, if the plaintiff had become half owner of the horse, it was by virtue of the conversation already narrated and the handing over by the defendant to the plaintiff of the horse for training. His Honour's conclusion was as follows:
The first question is whether the conversation as found and the handing over of the horse to the plaintiff for training were effective to make him the half owner of the horse. As to this, I have with respect, come to a conclusion different from that reached by his Honour. It seems to me that the conversation was promissory and could not warrant the conclusion that any property in the horse was transferred to the plaintiff when the horse was handed to him for training. That part of the conversation, to the effect that if the horse were to be sold at any time that the plaintiff should receive one half of the price obtained, was relied upon particularly as being sufficient to support a transfer of property. In truth, however, it does not do so. It shows nothing more than an agreement that, upon the happening of an event which might never happen, i.e. the sale of the horse, the plaintiff should be entitled to something, i.e. half the price obtained. It may be that it was implicit in the agreement that the defendant would not dispose of the horse otherwise than by sale, but if that should have been the case—and this was not decided—the only result of the defendant disposing of the horse, not by sale but by gift or otherwise, would be that he would have broken his contract and damages would have been recoverable. Of course, had the defendant transferred a half interest in the horse to the plaintiff, the plaintiff and the defendant would, without more, have been entitled to the proceeds of the sale in equal shares. No promise to that effect would have been necessary.
In the result I consider that the agreement to share equally prize money won by the horse and to share equally the sale price in the event of its sale does not provide a sufficient basis for a finding that the property in the horse was transferred from the defendant to the defendant and the plaintiff as owners in equal shares.
Accordingly, it is my opinion that the declaration and orders consequent thereon should not have been made. It is not, I think, possible for this Court to make declarations on the footing, contrary to his Honour's finding, that the horse belongs and has at all times belonged to the defendant. That there was a contract between the plaintiff and the defendant with regard to the horse has been plainly established; what its full terms were have not been established.
In my opinion the appeal should be allowed.
This case is about the ownership of a horse, called "Harwood Brigade", of some considerable value because of performances in trotting races. The appellant says that the horse is his absolutely; the respondent says that they are co-owners in equal shares. This issue was litigated before Hope J., sitting in the Supreme Court of New South Wales in Equity, in a suit in which the respondent was plaintiff, the appellant defendant. The suit was instituted in equity as a claim for a declaration that, as it was expressed, "the horse is owned by the plaintiff and the defendant equally between them as tenants in common". I criticized this terminology on the ground that tenancy in common is not, except by analogy, a technically correct expression for the co-ownership of a chattel. My criticism was perhaps pedantic, for did not Blackstone say that "things personal may belong to their owners, not only in severalty, but also in joint tenancy, and in common, as well as real estates"? He gave as an example a horse belonging to two or more persons. They might be joint tenants or tenants in common thereof: Commentaries , vol. 2, p. 399. Ownership in common of a chattel connotes that the owners have a unity of possession, but a distinct and several title to their shares, which need not be equal. The way in which the first claim in the statement of claim is to be understood is therefore clear. It was followed by a claim that an account be taken of prize moneys received by the defendant by the running of the horse in trotting races, to half of which prize moneys the plaintiff claimed to be entitled.
The ownership of the horse is a matter of a legal title. It is hard to see how the question could be properly brought into the equity jurisdiction of the Supreme Court, except perhaps on the basis that only there could a declaratory decree of title be had; and that this was an appropriate form of relief because one co-owner of a chattel still has procedural difficulties in asserting his rights against another at common law. Sometimes an action of trover will suffice but there are ancient restrictions upon this: see Halsbury's Laws of England [*] , vol. 38, p. 790 and the article by Professor Derham in The Law Quarterly Review, vol. 68, p. 507. However, we in this Court need not be concerned with purely procedural aspects of the question in the Supreme Court. The only disadvantage of it being there heard in the equity jurisdiction is that this may have led to some blurring of the distinction between contract and conveyance, between an agreement for sale and a sale. It may well be that a contract concerning a particular racehorse is of a kind that is specifically enforceable: but the case that the respondent, the plaintiff, sought to make is not that he was entitled to have the appellant, the defendant, transfer to him a half-interest in the horse. It is that such an interest was effectually transferred to him and that he has since April 1967 been a part owner of the horse. In the argument that we heard it was suggested by counsel for the respondent that the case was analogous to partnership, the horse being in the nature of partnership property. Further it was argued that there was an equitable jurisdiction to order the account claimed whether or not co-ownership was established. I do not think that either of these propositions can be sustained. The case would not be one for the taking of an account in equity even if it were held that the parties owned the horse in common. The case of French v Styring [1] , although it arose more than a hundred years ago, is interesting because of resemblance to this case, and because it supplies the answers to the respondent's contentions that I have mentioned. It was a case in which an owner and trainer were undoubtedly co-owners of a horse. I quote one passage only, from the judgment of Willes J. [2] :
- 3rd ed,
- (1857) 2 C.B. (N.S.) 357 [140 E.R. 455].
- (1857) 2 C.B. (N.S.), at p. 366 [140 E.R., at p. 458].
- (1849) 13 Q.B. 680 [116 E.R. 1423].
- (1839) 5 M. & W. 342, at p. 350 [151 E.R. 145, at p. 148].
- (1970) 120 C.L.R. 529.
- (1970) 120 C.L.R. 529.
The case before us turns on the effect of an oral agreement the parties made one weekend in April 1967. The learned trial judge had to decide what were the terms of this agreement; and, if they involved a promise by the appellant to transfer an interest in the horse, whether that promise was carried into effect. The evidence conflicted in details as to the actual words that were used. Remarks made, or not made, thereafter by one or other of the parties to third persons, and other certain incidents were said to throw light in the probabilities one way or the other of the respective versions of what had been agreed. There is no question that in April 1967 the appellant was the owner of the horse. The horse was then broken in and quiet, but untrained for racing. The respondent, a relative of the appellant, was known to him as a trainer of trotting horses and as a driver in trotting races.
The respondent's case was that the agreement between them was in substance as follows. He, the respondent, was to have possession of the horse, feed him, train him for racing, bear all expenses of entering him in races and race him; any prize money won to be divided equally between them; the respondent to have a half-share in the horse; whenever he was sold the purchase price would be divided equally between them; the delivery of the horse to the respondent then and there effected a transfer of the half-interest thus promised.
The appellant's case was that the agreement was, in substance, that the horse should be in the possession of the respondent to be cared for by him, trained by him at his expense and raced by him as driver; that he was to have half of any prize money won; and that "if the horse was sold while it was in his care he would get half the money that the horse was sold for".
The learned trial judge, having reviewed the evidence, said:
However, the respondent submits that, even if he were not a co-owner of the horse, he is entitled to the account claimed, and to a declaration that if the horse be ever sold by the appellant as owner, he is entitled to half the price obtained. The claim to an account was put in the argument as consequential upon co-ownership since April 1967. As I do not think that the premise propounded is acceptable the claim to an account on that basis fails. But it is suggested that a declaration should nevertheless be made that there was a contract between the parties concerning the horse. If his Honour had been asked to make such a declaration it may be that he could properly have done so. But it would I think be necessary for the declaration to state the terms of the contract with complete precision. I do not think that, on the evidence that was given, which was directed to a different issue, this Court can now make such a declaration. His Honour did say that there was a binding contract that, in consideration of the respondent training the horse to be fit to race, the appellant promised that if ever thereafter he sold the horse he would pay half of the price he got for him to the respondent, notwithstanding that he had ceased to have the care of the horse. I do not say that that was not so: but it is not I think for us to declare that it was so. As to the suggestion that there is a continuing obligation on the part of the appellant to pay to the respondent a half of any prize money that has been won since December 1968, I am unable to accept the view that if there was no co-ownership such an obligation appears from the evidence. The improbability of it is shown by his Honour's decision that it would have to be offset by the amount of expenses in respect of the horse incurred by the appellant since December 1968. This points to the promise of a share in prize money having been incidental to the respondent having the charges and expenses of keeping and training the horse and driving it in races. It may be that the assumptions made in the Queen's Bench many years ago in Forth v Simpson [1] and by Parke B. in Jackson v Cummins [2] , that a horse owner has ordinarily an absolute right to take a horse from the possession of a trainer at any time, is not today a rule applicable to a trotting horse in New South Wales: but that I doubt. The case for the respondent was put forward in the Supreme Court upon an alleged creation of a proprietary right enforceable by decree in equity. I do not think we can now treat it as if it were an action for breach of an alleged contract.
I would allow the appeal.
I have had the opportunity of reading the reasons of the other members of the Court. I agree with them that the appeal should therefore be allowed.
The issues raised by the suit in which this appeal has been brought and the principal findings made by the learned trial judge are set out in the judgment of Windeyer J., which I have had the advantage of reading.
The first question to be considered is whether the conclusion reached by the learned trial judge that, as a result of what took place between the plaintiff and the defendant when they met on an occasion in April 1967, they became co-owners in equal shares of a horse of which the defendant had previously been the sole owner, was one to which he could properly come, having regard to his primary findings of fact.
There was a direct conflict of evidence between the parties as to whether it was stated at the time when they made their arrangements about the horse that the plaintiff was to have a half share in its ownership. The plaintiff asserted that the defendant then said, when informing the plaintiff of the conditions upon which he was to take the horse, that the plaintiff would get "a half share in all the prize money and a half share in the horse". There is evidence of subsequent conversations in which it was claimed that the defendant had admitted that the plaintiff had a half share in the ownership of the horse. His Honour accepted the evidence of a witness named Norman McRae that the defendant had said the plaintiff "owns half of him". But upon a consideration of all the evidence the learned trial judge did not accept the plaintiff's statement that he was expressly told in April 1967 that he was to have a half share in the horse. His Honour said this:
Later in his reasons for judgment, his Honour restated his findings as to the conversation in April 1967, in the words set out in the judgment of Windeyer J. These are to the same effect, except that the two statements leave scope for debate as to what his Honour's finding was, concerning the time during which the parties would continue to be bound by their agreement concerning the sharing of prize money. I shall refer again to that point. But any uncertainty that may exist with regard to it does not affect, in my opinion, the question with which I am now dealing, relating to the claim of the plaintiff to have acquired a proprietary interest in the horse.
In my opinion, the primary findings of the learned trial judge as to what was said by the parties in April 1967 should be accepted by this Court. Those findings have not been challenged by the defendant, who is here the appellant. On behalf of the plaintiff (now the respondent), the reasons given by his Honour for not accepting the plaintiff's evidence that there was an express statement that he was to have a half share in the horse have been criticized. It has been submitted that this Court should reverse the finding on that point. I have considered the arguments, relating to certain details of the evidence, by which counsel supported that submission. I do not think I need set these out. I am not persuaded by them that we should make an affirmative finding in favour of the plaintiff, upon a fact the proof of which depended upon oral evidence which we have not heard and as to which the learned judge was not satisfied.
In the argument submitted to this Court there was a suggestion that the ultimate conclusion of his Honour, that the plaintiff had acquired a half interest in the horse, was reached by holding that this was a legal consequence flowing necessarily from the events which took place in April 1967, that is to say, from the placing of the horse in the plaintiff's charge upon the terms which according to his findings were expressly stated in the conversation between the parties, these being assumed to be the only terms of their agreement. In my opinion his conclusion could not be supported upon that basis. But I do not think it was by that means that his Honour came to his decision. His Honour said that the question was one of "intention evidenced by the words which were used in the circumstances in which they were used". He referred to "the intention of the parties, evidenced by what was said and done, that the plaintiff should have a half share in the horse". Again he said that the defendant "when he used the words I have referred to in April 1967, did intend to give the plaintiff a half interest in the horse". These statements make it clear, in my opinion, that what his Honour decided was that it was a term of the agreement made in April 1967 that the defendant should transfer and the plaintiff should receive a half interest in the horse. Although this was not expressly stipulated in their conversation, his Honour concluded that the words which were used, considered with reference to the circumstances in which they were spoken, disclosed an intention that this was to be part of the bargain. But at this point I am unable to agree with the learned trial judge. In my opinion, a conversation in the words which his Honour found to have been used could not warrant a finding that there was a communication by each party to the other of a common intention that the transfer of ownership was to take place. There can be no question here of implying a term that such a transfer should take place, on the basis that it was obvious that the parties must have intended that to be part of the agreement between them. His Honour did not deal with the agreement as one in which such a term was necessarily implied and clearly, in my opinion, it could not have been so regarded. His Honour concluded that it was in fact the intention of each party that the plaintiff was to have a half interest in the horse. To a considerable degree his conclusion that this was intended was based upon statements subsequently made by the defendant and, in particular, the statements to which the witness Mr. Norman McRae deposed. Subsequent statements of the defendant might have been considered quite properly in coming to a decision upon the disputed question whether the defendant offered in April 1967 to give the plaintiff a half share in the horse and they might have been regarded by the learned trial judge as pointing to the conclusion that the defendant had done so. But since, notwithstanding those subsequent statements, his Honour was not satisfied that any words were used which referred to a half share in the horse, I find it difficult to regard the subsequent statements as providing any support for a finding that the agreement included a term that the plaintiff was to obtain a half share. In an agreement there must be, of course, a consensus ad idem. An intention in the mind of one party can have no effect if not communicated to the other and assented to by him. In the circumstances of this case, it is not possible in my opinion to find in the words that were used a communication by the defendant of an intention on his part to transfer to the plaintiff a half interest in the horse. The case is not one, in my opinion, in which there was anything in the conduct of the parties from which it could be inferred that what was offered and accepted included that stipulation. The relevant conduct was simply the handing over of the horse into the possession of the plaintiff and his taking possession of it. But the terms upon which these acts took place are not to be ascertained in the present case by way of inference from the acts themselves. They are to be ascertained from what the parties said at the time when the acts were done. What was said did not include any stipulation that the parties were to become co-owners of the horse.
It was submitted on behalf of the respondent that, in the circumstances existing at the time when the horse was delivered to the plaintiff, the arrangements which were then made should be considered as raising a question analogous to that which may arise when in a partnership business an asset previously owned by one partner is used and there is no definite agreement either that it is or that it is not to become a partnership asset. Counsel drew attention to the facts that the horse had not been trained for racing and that the plaintiff was required to bear all the expenses and provide all the labour needed to bring the horse to a condition of fitness for racing, during a substantial period of time, before there could be any chance of obtaining any return from the venture. It was submitted that the facts were similar to those which have sometimes been regarded as justifying the conclusion that an asset has been brought in by one partner as his contribution to a partnership, in which the other partner was to contribute his services and was to spend money. We were referred to Harvey v Harvey [1] . But, in my opinion, the question of the entitlement of the parties to the ownership of the horse cannot be resolved by the method of approach adopted in the foregoing submissions. No claim was made in the pleadings or at the trial of the suit that the parties had entered into a partnership or that the horse, whilst remaining the property of the defendant at law, had become in equity the property of a partnership. If such a claim had been made, it would not have been established by the evidence given at the trial. There is no warrant, in my opinion, for treating the question raised by the plaintiff's claim for a declaration that the horse was owned by the plaintiff and the defendant equally between them as tenants in common as being analogous to the question which was considered in Harvey v Harvey [1] .
- [1971] 1 N.S.W.L.R. 192; (1971) 23 L.G.R.A. 14.
- [1964] 1 W.L.R. 219, at pp. 224-225.
- (1970) 91 W.N. (N.S.W.) 250; 21 L.G.R.A. 410.
My conclusion is that the declarations as to ownership made by the Supreme Court ought not to have been made. It has been submitted for the respondent that, if this Court should decide that those declarations ought to be set aside, it should make a declaration, based on the primary findings of the trial judge, stating the terms of the contract between the parties and that it should confirm in their existing or in a modified form the orders made by the Supreme Court for the taking of accounts and for the payment by the defendant of an amount thus ascertained, in respect of moneys paid or payable to him as prize money after he took back possession of the horse.
The powers given to the Supreme Court of New South Wales in its equitable jurisdiction by s. 10 of the Equity Act, 1901-1968 NSW, in the form in which that section was enacted when that Act was amended by s. 15 of the Law Reform (Miscellaneous Provisions) Act, 1965 NSW, are extensive. In particular, they extend to the making of declarations as to "the interests, powers, rights and liabilities or duties of any persons arising under any contract or agreement " It has been held recently, in the Court of Appeal Division of the Supreme Court of New South Wales, in Salmar Holdings Pty Ltd v Hornsby Shire Council [1] that the jurisdiction to grant declaratory relief unaccompanied by consequential relief extends to matters which do not fall within the traditional cognizance of a court of equity and that the limitations applicable to that jurisdiction are not more extensive than those applicable to the power to grant declaratory relief which may be exercised by a court under a judicature system. In that case, the Court referred to the views as to the extent of the power and as to the principles applicable to the exercise of the discretion which the Court has in relation to it which were stated in Ibeneweka v Egbuna [2] . There it was said that the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making and that, beyond that, there is no legal restriction on the award of a declaration. Similar opinions have been stated in New South Wales in other cases such as Sutherland Shire Council v Leyendekkers [3] . I have considered the question whether a declaration should be made as to the terms of the contract between the parties, in so far as these have been found by the learned trial judge, in order to avoid any need to have further litigation to determine such issues of fact as have been already decided at the hearing of the suit. But I have come to the conclusion that, however liberal a view should be taken of the extent of the powers conferred by s. 10 of the Equity Act and of the manner in which these should be exercised, it would not be proper in the circumstances of this case for this Court to hold that such a declaration should be made. Therefore I need not express an opinion as to the correctness or otherwise of the views as to the operation of s. 10 which have been taken in the Supreme Court in the cases to which I have referred. My principal reason for thinking that this is not a case in which a declaration should now be made is that I am unable to determine with precision what the terms are which should be declared to be those to which the parties agreed. In their conversation, in the version of it which his Honour accepted, the parties did not refer in detail to the questions (1) whether the plaintiff's obligations to train the horse and to bear the expense of keeping and training him were to continue throughout the life of the horse; (2) whether the plaintiff was to have a right, provided that he performed those obligations or was willing to perform them, to keep the horse throughout its life; and (3) whether the rights and obligations of the parties as to the sharing of prize money were to continue, or were to be extinguished or modified, if the plaintiff ceased to be the trainer of the horse. The learned trial judge decided that the parties had become co-owners of the horse. He appears to have decided also that as co-owners they were entitled, after the defendant took back the horse, to take equal shares, not in the gross amounts of prize money, but in the net amount obtained after deducting the expenses properly incurred by the defendant in relation to the training racing and maintenance of the horse and its equipment. Since I am of opinion that it should not have been found that they are co-owners, it is not necessary to consider whether co-ownership would have had the consequence that the defendant whilst in possession of the horse would have been under an obligation to pay to the plaintiff an amount so determined. It is to be observed that the agreement as to sharing of prize money which his Honour found to have been made was one in which all expenses were to be met solely by the plaintiff and, so long as the agreement was operative, the sharing was to be of the gross amount of the prize money. But the inquiries that were directed provided in effect for an equal sharing of the expenses and for an equal distribution of the net amount of the prize money.
Whether the judge was right or wrong in his conclusions as to the orders that ought to be made concerning the prize money consequentially upon his decision that the parties had been co-owners since April 1947, he was not required to make and he did not make findings as to what were the details of the agreement between the parties, assuming that their rights rested simply upon agreement and not upon co-ownership, in relation to the three questions which I have set out above. The findings which his Honour did make are not such that the answers to those questions must follow obviously from them. His Honour said that he did not think that "there was implicit in anything that was said any limitation as to time in relation to this agreement". But this statement must be taken, I think, to refer only to the question, on which there was a direct contest at the trial, whether the agreement that if the horse was sold the plaintiff was to receive half of the price was to be effective only if the sale took place whilst the plaintiff was the trainer of the horse. It cannot be taken as a finding that the agreement relating to the sharing of the prize money was to be unlimited in point of time and was to operate whether or not the plaintiff continued to train the horse. It seems unlikely that the plaintiff would have been willing to accept an obligation to continue to spend time and money on the horse whether or not it appeared to have any chance of winning races and whether or not the plaintiff wished to continue to train it. Likewise it seems unlikely that the defendant would have been willing to accept an obligation to share the prize money, which would continue although the plaintiff was no longer the trainer and although the defendant might be obliged to incur other expenditure to provide for the training of the horse. But whatever bargain the parties might have been willing to make, it is not possible in my opinion to make a declaration stating fully the terms of the agreement which was in fact made. The reason is that the claim of the plaintiff was not pleaded and was not litigated in a way that resulted in the making of detailed findings of all the terms of the agreement relevant to its operation in the events which happened. It is not possible for this Court to say in what terms his Honour ought to have made the declaration of the rights of the parties under the agreement, if he had been requested to grant that relief and if in the exercise of his discretion he had been willing to grant it.
One matter which was in contest between the parties was whether the plaintiff was to be entitled to receive one-half of the sale price of the horse if it were sold at any time or only if it were sold whilst it was being trained by the plaintiff. His Honour resolved that issue in favour of the plaintiff. But, in my opinion, it would not be proper in the circumstances to hold that a declaration of right should be made dealing only with that term of the agreement.
It was submitted for the plaintiff that in any event this is a proper case for an order for the taking of an account between the parties. In my opinion, however, as there is no relationship between the parties such as to attract the equitable jurisdiction of the Supreme Court of New South Wales, the only basis upon which an account could be claimed would be that the account is of such a complicated kind that it could not be investigated in an action at law. In my opinion this is not a case in which the jurisdiction assumed by the courts of equity to intervene in common law matters in which complicated accounts have to be taken could properly have been exercised. But in any event I am of opinion that, because of the absence of detailed findings as to the terms of the agreement, to which I have already referred, it is not possible for the plaintiff to be granted, in aid of the enforcement of his contractual rights, an order for the taking of accounts, either in the form in which these were ordered by the Supreme Court or in any modified form.
For the reasons stated I am of the opinion that the appeal should be allowed, that the declarations and orders made by the Supreme Court should be set aside and that the suit should be dismissed.
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