Hopcroft v Edmunds (No 2) - [2012] SASC 94

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
HOPCROFT & ANOR v EDMUNDS & ORS (NO 2)
[2012] SASC 94
Judgment of The Honourable Justice Blue
12 June 2012
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - FORMATION OF CONTRACTUAL RELATIONS
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH - CONDITIONS - CONDITIONS PRECEDENT AND SUBSEQUENT
ESTOPPEL - ESTOPPEL IN PAIS - THE REPRESENTATION - BY CONDUCT
CONTRACTS - PARTICULAR PARTIES - PRINCIPAL AND AGENT - RELATIONS BETWEEN PRINCIPAL AND THIRD PERSONS - RIGHTS AND LIABILITIES OF PRINCIPAL IN RESPECT OF CONTRACTS OF AGENT
In 1995, the plaintiffs were suing successive Directors of Fisheries. The first three defendants were suing a fisherman and firm of solicitors. All actions concerned abalone licences.
The plaintiffs had discussions with the first three defendants concerning assistance which the plaintiffs may be able to provide to them in their action. It was proposed that the plaintiffs would provide assistance in the litigation, would become directors and shareholders of the third defendant, and would be paid a percentage of the proceeds of the litigation. The parties acted on the basis that the third defendant was the trustee of a family trust, but in fact the fourth defendant had replaced the third defendant as trustee.
A “Shareholders Agreement” was drafted by solicitors on instructions from the defendants’ accountant. It was executed by the plaintiffs but not by any of the first three defendants. The plaintiffs were made directors and shareholders of the third defendant which the plaintiffs pleaded occurred pursuant to the Shareholders Agreement. Certain payments were made to the plaintiffs which they pleaded were made pursuant to the Shareholders Agreement.
The plaintiffs claim that a contract was entered into with the first three defendants either upon their execution of the Shareholders Agreement or upon the appointment of the plaintiffs as directors of, and the issue of shares to them in, the third defendant. The plaintiffs claim that the fourth defendant is estopped from denying it is bound by the contract.
The defendants deny that any contract came into existence. In the alternative, they claim that any contract was subject to an unfulfilled condition precedent or was rescinded or terminated by them for misrepresentation or breach. They also claim that the plaintiffs’ action is statute barred.
Held, plaintiffs’ action dismissed because no contract came into existence:
(1) It was the manifest intention of the parties that the Shareholders Agreement was not to become binding until executed by all parties. In any event, the defendants’ accountant did not have authority to proffer the Shareholders Agreement to the plaintiffs on the basis that execution by the plaintiffs alone would constitute a binding agreement and there was no case of ostensible authority.
(2) The appointment of the plaintiffs as directors and the issue of shares to them (and the payments made to the plaintiffs) were not sufficiently referrable to the Shareholders Agreement as to constitute acceptance.
If there had been a contract:
(3) The fourth defendant would have been estopped from denying that it was a party.
(4) There was no overriding condition precedent to the Shareholders Agreement.
(5) The defendants established one misrepresentation but failed to establish reliance or inducement.
(6) The defendants did not rescind or terminate the contract.
(7) The action was not instituted out of time. No extension of time should be granted if it were.
The defendants’ counterclaim also dismissed.
Fair Trading Act 1987 (SA) s 56, 84; Fisheries Act 1971 (SA) s 16, 29, 31, 32, 34; Limitations of Actions Act 1936 (SA) s 35(a); Managed Fisheries Regulations 1971 (SA) reg 5, 8, 9, 11, 17, 21A, 35(1), 35(5), 35AA; Scheme of Management (Abalone Fisheries) Regulations 1991 (SA) reg 13; Scheme of Management (Western Zone Abalone Fishery) Regulations 1984 (SA), referred to.
Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; Summit Properties Pty Ltd v Comserve (No 784) Pty Ltd (1981) 2 BPR 9173, applied.
Brogden v Metropolitan Railway Co [1877] 2 App Cas 666; Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523; Rust v Abbey Life Assurance Co Ltd [1979] 2 Lloyd's Rep 334, distinguished.
Kelly v Kelly (1988) 48 SASR 115; Kelly v Kelly (1990) 64 ALJR 234; Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; Pennington v McGovern (1987) 45 SASR 27; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; Weldon v Neal [1987] 19 QBD 394, discussed.
Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540; Cliff v Quinn (1988) 54 SASR 151; Karasaridis v Kastoria (1984) 37 SASR 345; Masters v Cameron (1954) 91 CLR 353; Redowood Pty Ltd v Mongoose Pty Ltd [2005] NSWCA 32; Renowden v McMullen (1970) 123 CLR 584, considered.

HOPCROFT & ANOR v EDMUNDS & ORS (NO 2)
[2012] SASC 94
Table of Contents
1. Overview
2. Parties
Mr Edwards
Mr Hopcroft
Mr and Mrs Edmunds

3. Fisheries Licensing Regime
Licensing regime
Issues in the Edwards action
Issues in the Edmunds litigation
Overlapping issues
Relevant authorities

4. Witnesses
Mr Edwards
Mr Hopcroft
Mr Edmunds
Mrs Edmunds
Mr Noolan
Ms Caballaro

5. Relevant facts
Initial communications 1985 to February 1995
March-April 1995 discussions
March 1995 Correspondence
Discussion between Mr Noolan and Mr Edwards/Mr Hopcroft
Discussions between Mr Noolan and Mr and Mrs Edmunds
Instructions to Cowell Clarke
May 1995
The drafting of the Shareholders Agreement
The execution of the Shareholders Agreement
Messrs Edwards & Hopcroft become directors and shareholders
Telephone discussion between Mr Edmunds and Mr Edwards July 1995
June to November 1995
Payments to Mr Edwards and Mr Hopcroft
December 1995 to July 1996
Payments to Danvers Lawyers
September to December 1996
Gouger Street Meeting
January to October1997
Danvers letter to Mr Edmunds
Work by Mr Edwards
Request for resignation as directors
Danvers second letter to Mr Edmunds
Requests for payment by Mr Edwards
The case of the Edmunds at the trial of the Edmunds litigation
Mrs Edmunds’ evidence concerning Messrs Edwards and Hopcroft
Communications concerning resignations as directors
Mr Edmunds’ evidence concerning Messrs Edwards and Hopcroft
Meeting at Noolan & Co
Completion of trial
Removal of directors
Danvers third letter
Result of Edmunds litigation
Communications between the parties

6. Findings on contested areas of fact
April 1994 Hamilton meeting
March-April 1995 communications
Mode and venue of discussions
Timing of discussions
Content of discussions
Nature of assistance
Showing and description of Edwards documents
Vitality of Edwards documents
Amount of percentage
Subject matter of percentage
Fixed dollar payment
Directors and shareholders
Response of the Edmunds

Discussion between Mr Noolan and Mr Edwards/Mr Hopcroft
Hyde Park Hotel meeting
Telephone discussion between Mr Edmunds and Mr Edwards July 1995
Payments November 1995
Discussion between Mr Edmunds and Mr Edwards November 1996
Agreement for Work by Mr Edwards for $25 per hour
Communications concerning resignation as directors
Meeting 23 June 1999
Work undertaken by Messrs Edwards and Hopcroft
Payments by the Edmunds to Mr Edwards

7. The existence of a contract
Upon execution by plaintiffs
Intention to contract
Authority of Mr Noolan

Upon Messrs Edwards and Hopcroft becoming directors and shareholders
The Law
Analysis: making plaintiffs directors and shareholders
Analysis: payment of money
Agreement inferred from conduct as a whole
Some other matters

Conclusion

8. Dadeeton as a party to contract
Basis of plaintiffs’ estoppel claim
Construction of the Shareholders Agreement
Estoppel by representation
Estoppel by convention

9.     Condition precedent to contract
10.     Performance of and entitlements pursuant to contract
11.     Misrepresentation
Representations
Falsity
Reliance
Rescission
Conclusion

12. Termination
13. Time limitation
The Action
Claim against Dadeeton
Extension of time

14. Conclusion
Civil

BLUE J: The plaintiffs claim monies payable pursuant to a contract allegedly made in mid 1995.
The plaintiffs claim that the contract was entered into:
1.in late June 1995 when the plaintiffs executed a document entitled “Shareholders Agreement” on the basis that the tender of the document to them for execution constituted an offer by the first three defendants which was accepted by executing the document;[1]
2.alternatively in early July 1995, upon the appointment of the plaintiffs as directors of, and the issue of shares to them in, the third defendant on the basis that it constituted acceptance by the first three defendants of an offer made by the plaintiffs by their execution of the document.[2]
[1] Second Further Amended Statement of Claim (“Statement of Claim”) [8.1].
[2] Statement of Claim [8.2].
The plaintiffs claim that the fourth defendant is estopped from denying that it is bound by the contract.[3]
[3] Statement of Claim [15].
The plaintiffs claim that they are entitled to be paid 15 per cent of the net value of abalone authority W17 as at March 2001, and 15 per cent of certain damages received by the defendants.
The defendants deny the existence of any contract or estoppel. In the alternative, they claim that:
1.the contract was subject to a condition precedent concerning the availability and value of certain evidence, which was never satisfied;[4]
2.the contract was induced by misrepresentation entitling them to rescind it which they did;[5]
3.the contract was terminated by the defendants for breach or repudiation by the plaintiffs or by operation of its terms;[6]
4.the action is statute barred by section 35(a) of the Limitation of Actions Act 1936 (SA).[7]
[4] Defence to Second Further Amended Statement of Claim and Amended Counterclaim (“Defence and Counterclaim”) [8.21], [8.22], [8.26]-[8.28], [8.32], [8.33].
[5] Defence and Counterclaim [8.1]-[8.10], [8.23]-[8.31], [32]-[35].
[6] Defence and Counterclaim [28], [29], [36], [37].
[7] Defence and Counterclaim [25].
The plaintiffs seek an extension of time within which to institute the action in the event that it is time barred (which they deny).[8]
[8] Statement of Claim [25].
It was agreed that the trial proceed on liability and that quantum issues be deferred to a second stage.
1. Overview
As at 1995, Mr and Mrs Edmunds and Smoothpool Nominees Pty Ltd (“Smoothpool”) in its capacity as trustee of the Cliff Edmunds Family Trust (“the Edmunds Family Trust”) (respectively, the first, second and third defendants in this action), were suing Gregory Pickering and related parties (“the Pickerings”). The action alleged that in June 1982 Mr Pickering repudiated a deed of trust he had executed in October 1980 under which he had agreed to hold abalone authority W17 on trust for Smoothpool (“the Pickering action”). They were also suing their former solicitors, Stratford & Co, for negligence in connection with their dealings with Mr Pickering (“the Stratford action”). At the same time, Mr Edwards and Mr Hopcroft were separately suing successive Directors of Fisheries for misfeasance in public office and negligence.
In March/April 1995, discussions took place between Mr Edwards and Mr Edmunds concerning assistance which might be provided by Messrs Edwards and Hopcroft in connection with the Pickering and Stratford actions (collectively “the Edmunds litigation”). Mr Hopcroft and Mrs Edmunds were also present at one of those discussions, although the parties disagree as to the timing, venue and content of that discussion.
During those discussions, proposals were made that:
1.Messrs Edwards and Hopcroft provide assistance to the Edmunds[9] in connection with the Edmunds litigation;
2.Messrs Edwards and Hopcroft be paid a percentage[10] of the proceeds[11] of that litigation;
3.Messrs Edwards and Hopcroft become directors and shareholders of Smoothpool.
[9] I use the term “the Edmunds” throughout these reasons generally to encompass the defendants but without more precise connotation. Who the parties intended to encompass on the Edmunds’ side and did encompass if there was a contract is the subject of dispute and is addressed later in these reasons.
[10] There is a dispute whether the figure was 7.5 per cent or 15 per cent, which I address later in these reasons.
[11] I use the term “proceeds” throughout these reasons generally to encompass the (potential) fruits of the Edmunds litigation but without more precise connotation. What the parties intended to encompass and did encompass if there was a contract is the subject of dispute and is addressed later in these reasons.
In May and June 1995, several drafts of a “Shareholders Agreement” to that effect were prepared. In late June 1995, the last version of the Shareholders Agreement was executed by Messrs Edwards and Hopcroft simultaneously with their execution of consents to act as directors of, and applications for shares in, Smoothpool. In July 1995, Mr and Mrs Edmunds appointed Messrs Edwards and Hopcroft as directors of Smoothpool and resolved to issue shares to them in Smoothpool. The Edmunds did not and never did execute the Shareholders Agreement.
In September/October 1997, the fourth defendant, Dadeeton Pty Ltd (“Dadeeton”), was joined as an additional plaintiff in the Edmunds litigation. This was on the basis that it had become the trustee (in lieu of Smoothpool) of the Edmunds Family Trust in 1982/1983.
The Edmunds litigation proceeded to trial in 1999. The Edmunds succeeded against the Pickerings. In 2000, orders were made that Mr Pickering transfer abalone authority W17 and that the Pickerings pay damages totalling $937,433 to Dadeeton (as trustee of the Edmunds Family Trust). The Edmunds received abalone authority W17 in March 2001. The Edmunds received $128,214 of the damages awarded (on the insolvency of the Pickerings).
2. Parties
Mr Edwards
Mr Edwards became a professional abalone diver in 1967. From mid 1968, he was based at Elliston and Port Lincoln on the west coast. He held a fishing licence. Upon their introduction, he was granted an abalone permit in 1968. This was replaced in August 1980 with an abalone authority when the fisheries licensing regime changed to make abalone authorities “transferable”.
In anticipation and as a result of those changes in the fisheries licensing regime, Mr Edwards incorporated a company and applied to the Department of Fisheries to hold his abalone authority on trust for his company. The application was not granted. He sold his abalone authority in November 1980.
In about 1984, Mr Edwards sought legal advice concerning the lawfulness of the “owner/operator policy”[12] of the Fisheries Department. He claimed that it prevented him from fully exploiting his abalone authority.
[12] This “policy” is addressed in detail later in section 3 of these reasons.
In or before 1985, Mr Edwards formed the Abalone Divers Action Group. Its purpose was to institute proceedings by or on behalf of abalone divers who had been affected by the “owner/operator policy”. A number of abalone divers joined the Action Group. They included Mr Hopcroft. Mr Edmunds was invited to join the group but declined.
In 1986, Mr Edwards and his company instituted an action in this Court against successive Directors of Fisheries (“the Edwards action”).[13] They relied on misfeasance in public office and negligence causes of action to claim damages allegedly suffered due to the wrongful refusal to permit Mr Edwards to conduct abalone diving other than personally (eg. under a company and/or trust structure or employing an abalone diver). Ultimately, about 12 abalone divers belonging to the Action Group brought similar actions (collectively “the Fisheries litigation”). Mr Edwards was the acknowledged leader of the group and the Fisheries litigation.
[13] Action No 2556 of 1986.
In November 1990, Armour & Co commenced acting for Mr Edwards and his company in the Edwards action. Mr Danvers had the conduct of the matter. Mr Edwards changed solicitors to Armour & Co because were acting for the Edmunds. By that time, Mr Edwards had moved from Port Lincoln to Hamilton, Victoria.
In the second half of 1994, Mr Edwards and Mr Hopcroft were permitted to inspect a vast number of Fisheries Department documents held at State Archives. Those documents included approximately 70 documents which were the subject of legal professional privilege, being communications passing between the Department and the Crown Solicitor’s Office.
In June 1995, Mr Danvers left Armour & Co. The new firm of Danvers & Co commenced acting for Mr Edwards.
In September 1996, the Full Court of this Court answered a Case Stated in the Edwards action to the effect that aspects of the “owner/operator policy” were unlawful.[14]
[14] Exhibit P6: Edwards v Olsen (1996) 67 SASR 266.
In 1997, Mr Edwards moved from Hamilton to Ingle Farm. In July 1997, Phillips Fox commenced acting for Mr Edwards in lieu of Danvers & Co.
Between February and December 2000, the trial of the Edwards action proceeded before Perry J. In December 2000, judgment was granted for the Directors of Fisheries.
Mr Hopcroft
Mr Hopcroft became a professional abalone diver and was granted an abalone permit in 1968 upon their introduction. He was based at Port Lincoln.
In 1975, Mr Hopcroft became a prawn fisherman by reason of which the Fisheries Department required him to surrender his abalone permit. In 1981, he ceased carrying on his prawn fishing business.
Some time between 1981 and 1987, Mr Hopcroft joined the Action Group. He commenced working closely with Mr Edwards in relation to it. Mr Hopcroft regarded Mr Edwards as the “captain” of the Group.
In 1987, Mr Hopcroft instituted an action in this Court against successive Directors of Fisheries (“the Hopcroft action”). He claimed damages for the wrongful requirement that he surrender his abalone permit in order to obtain a prawn fishing permit. Since not later than November 1990, Mr Hopcroft’s solicitors in that action were Armour & Co. By that time, Mr Hopcroft was living in a townhouse at West Lakes.
In February 2000, at the commencement of the trial of the Fisheries litigation, Mr Hopcroft settled his action against the Directors of Fisheries.
Mr and Mrs Edmunds
Mr Edmunds became a professional abalone diver and was granted an abalone permit upon their introduction in 1968. He was based in the south east.
In 1976, Mr Edmunds moved to Streaky Bay and commenced abalone diving off the west coast. He obtained an abalone permit for the western zone. The permit was W10. In 1977, Mr Edmunds met the second defendant. They later married.
In February 1980, Mr and Mrs Edmunds created the Edmunds Family Trust and became the initial trustees.
On 28 August 1980, Mr Edmunds’ abalone permit became abalone authority W10 upon the change in the fisheries licensing regime. In anticipation of the change, Mr and Mrs Edmunds negotiated with Mr Fox to “acquire” his abalone permit/authority W17. The initially agreed purchase price was $65,000. It was later varied to $95,000. Mr and Mrs Edmunds intended the abalone diving conducted pursuant to W17 to be undertaken by another diver. The diver would hold the authority in his own name but on trust for the Edmunds Family Trust. The diver would own the boat used for diving both legally and beneficially. The diver would receive an agreed remuneration of 25 per cent of the gross proceeds of the abalone.

Mr Edmunds negotiated with Mr Pickering for him to perform the role of nominee diver and an agreement to that effect was made.
On 28 August 1980, Mr and Mrs Edmunds incorporated Smoothpool. They were its sole directors and shareholders. On 8 October 1980, Smoothpool replaced Mr and Mrs Edmunds as trustee of the Edmunds Family Trust.
It was proposed that Mr Fox would transfer W17 to Mr Pickering who would hold it on trust for Smoothpool as trustee of the Edmunds Family Trust. On 21-22 October 1980, three documents were executed to implement that transaction:
1.a deed of trust between Mr Pickering and Smoothpool;
2.an agreement for sale and purchase between Mr Fox and Mr Pickering for $65,000; and
3.an agreement between Mr Fox and Smoothpool (together with Mr and Mrs Edmunds and Mr Pickering) for Smoothpool to pay $30,000 in instalments to Mr Fox in further consideration for the acquisition of W17.
The “transfer” of the authority from Mr Fox to Mr Pickering was approved by the Director of Fisheries. Settlement of the transaction took place.
At about the same time, Mr Edmunds decided to transfer his own abalone authority, W10, to another diver to undertake the abalone diving on trust for the Edmunds Family Trust. On 4 November 1980, Mr Bird and Smoothpool executed a deed of trust. The “transfer” of W10 by Mr Edmunds to Mr Bird was approved by the Director of Fisheries. Thereafter W10 was held by Mr Bird (on trust for the Edmunds Family Trust).
Accordingly from November 1980 onwards, Mr Edmunds was no longer the principal abalone diver, but acted as sheller and relief diver for Mr Bird. The Edmunds did not hold any abalone authorities in their own names but the Edmunds Family Trust was the beneficial owner of two abalone authorities, W10 and W17.
In June 1982, Mr Pickering informed Mr Edmunds that the trust arrangement was unlawful and he was now treating W17 as his own.
Negotiations took place between the parties’ solicitors. They culminated in a Heads of Agreement made on 6 August 1982 (“the 1982 agreement”). Mr Pickering was to pay to the Edmunds $100,000 ($80,000 cash and taking over the $20,000 debt still due to Mr Fox). W17 was to belong to Mr Pickering in his own right (ie beneficially as well as legally). Formal documentation by way of a deed of settlement was executed on 25 October 1982 (“the 1982 deed”).
On 20 October 1982, Mr and Mrs Edmunds acquired a “shelf” company from their solicitors which they named Blanche Port Fisheries Pty Ltd and became its sole directors and shareholders. On or before 30 June 1983, the new company became the trustee of the Edmunds Family Trust in lieu of Smoothpool.
In about 1983, W10 was transferred to Mr Holmes, in about 1986 from Mr Holmes to Mr Stafford, in about 1988 to Damon Edmunds and in about 1989 to Dadeeton, each of whom successively held it on trust for the Edmunds Family Trust.
On 1 July 1984, upon a further change in the fisheries licensing regime, abalone authorities W10 and W17 became abalone licences W10 and W17.
In 1987, Mr and Mrs Edmunds negotiated to purchase the local fish factory in Streaky Bay. They decided to conduct the fish processing business via Smoothpool acting in its own right. They retained Armour & Co in connection with the purchase. Armour & Co advised them that they may have a claim against Mr Pickering in relation to his repudiation of the trust in 1982.
Mr and Mrs Edmunds decided to use the trading name Blanche Port Fisheries for the fish factory. On 15 October 1987, Blanche Port Fisheries Pty Ltd changed its name to Ab-Venture Pty Ltd and three weeks later to Dadeeton Pty Ltd. Smoothpool in its own right became the registered proprietor of the trading name Blanche Port Fisheries.
Mr and Mrs Edmunds retained Jon Noolan as their accountant in connection with the purchase of the fish factory. He became the accountant for the Edmunds generally and continued as such until approximately 2005.
As of 1987, Mr Edmunds focussed on the abalone fishing business. Mrs Edmunds focussed on the fish processing business. However both took an active interest and role in both businesses.
On 25 October 1988, Mr and Mrs Edmunds and Smoothpool (as trustee of the Family Trust) instituted the Pickering action[15] and the Stratford action.[16] Both actions were instituted by Armour & Co. Mr Armour was responsible for the Edmunds litigation between October 1988 and August 1997. At about the time the actions were instituted, advice was obtained from counsel on the prospects of success. Counsel’s advice was that the prospects of success were only about 30 per cent. Advice had earlier been obtained from senior counsel. Senior counsel had advised that the prospects of success were poor or very poor.
[15] Action 2452 of 1988.
[16] Action 2453 of 1988.
In October 1989, the statement of claim in the Pickering action was amended. It was pleaded that Smoothpool was the trustee of the Edmunds Family Trust; that Mr Pickering had wrongfully repudiated his obligations as trustee in June 1982; and that the 1982 deed was voidable because the purchase of the beneficial interest by Mr Pickering had been at an undervalue (its true value being $160,000) or under duress or mistake of law.
In about 1994, Armour & Co retained Mr Tilmouth QC (now Judge Tilmouth) as senior counsel and Mr Blumberg (now Master Blumberg) as junior counsel in the Edmunds litigation. In 1995, they expressed opinions that the prospects of success were not good.
In August 1997, Mr and Mrs Edmunds retained Phillips Fox in lieu of Armour & Co. In turn, Phillips Fox retained Mr Walsh QC as senior counsel and Mr Rice (now Master Rice) as junior counsel.
In September/October 1997, Dadeeton was joined as an additional plaintiff in the Edmunds litigation. It was pleaded that Dadeeton had been the trustee of the Edmunds Family Trust since 1982.
The trial of the Edmunds litigation was heard by Lander J between 22 March and 23 July 1999. During the trial, three additional defendants were joined, namely Gregory Pickering Investments Pty Ltd, Silver Glow Pty Ltd and Mrs Pickering.
On 24 June 1999, the action against Stratford & Co was dismissed by consent. In June 1999, Dadeeton transferred abalone licence W10 to another company Aquaculture Research Pty Ltd so that it would not be holding two licences if W17 were transferred to it as a result of a favourable judgment.
On 23 December 1999, Lander J delivered reasons for judgment in favour of the Edmunds.[17] On 10 August 2000, Lander J delivered reasons for judgment as to the precise relief to be granted.[18] An order was made that, upon payment of $514,544 by Smoothpool to Mr Pickering (being the value of the payments made by Mr Pickering to or for the Edmunds around 1982 totalling around $112,500 plus compound interest), Mr Pickering transfer W17 to Dadeeton (on trust for the Edmunds Family Trust). Mr Pickering and Gregory Pickering Investments Pty Ltd were ordered to pay to Dadeeton damages of $937,433 and Silver Glow Pty Ltd to pay to Dadeeton damages of $265,000 (being part of the total of $937,433).
[17] Exhibit P20: Edmunds v Pickering (No 3) (1999) 75 SASR 407.
[18] Exhibit P18: Edmunds v Pickering (No 4) (2000) 77 SASR 381.
On 2 March 2001, W17 was transferred from Mr Pickering to Dadeeton (as trustee of the Edmunds Family Trust).
On 17 December 2001, each of Gregory Pickering Investments Pty Ltd and Silver Glow Pty Ltd was placed in liquidation. On 28 May 2003, Mr Pickering was made bankrupt on Dadeeton’s petition. The liquidator of Gregory Pickering Investments Pty Ltd paid to Dadeeton $128,214.84 in respect of the judgment debt. The liquidator of Silver Glow Pty Ltd and the bankruptcy trustee of Mr Pickering made no payments to creditors.
The Edmunds Family Trust incurred legal fees in connection with the Pickering litigation totalling $1,492,156.
3. Fisheries Licensing Regime
In order to understand the communications leading up to execution of the Shareholders Agreement by Messrs Edwards and Hopcroft at the end of June 1995 and other issues in this action, it is essential to understand the fisheries licensing regime in force in relation to abalone in the Western Zone of South Australia over the period between 28 August 1980 and 30 June 1984, and the respective issues in the Edwards action and the Pickering litigation.
Licensing regime
The licensing regime comprised the Fisheries Act 1971 (SA), the Managed Fisheries Regulations 1971 (SA) and various policies and administrative practices of the Fisheries Department.
Under the Fisheries Act 1971:
1.a fishing licence was required to be held by any person taking fish for commercial purposes;[19]
2.an Australian company could be granted a fishing licence provided that the Minister consented;[20]
3.a licensee could not employ any other person to take fish unless he or she held a licence authorising the licensee to employ one or more persons to take fish, which could only be granted if the Director of Fisheries was satisfied that it would not prejudice the proper management of the relevant fishery;[21]
4.boat registration was required (in addition to a licence) by any person using a boat to take fish for commercial purposes.[22]
[19] Fisheries Act 1971 (SA) section 29.
[20] Fisheries Act 1971 (SA) section 31.
[21] Fisheries Act 1971 (SA) section 32, section 34.
[22] Fisheries Act 1971 (SA) section 16.
Under the Managed Fisheries Regulations 1971:
1.an abalone authorisation certificate (“abalone authority”) was required by any person using a boat to take abalone (which took the form of an endorsement on the person’s fishing licence on the application of the owner of the boat (who presumably held the boat registration));[23]
2.subject to 3 below, the holder of an abalone authority was prohibited from causing or permitting any other person to dive from the boat or take abalone;[24]
3.the Director of Fisheries was empowered to make an endorsement upon an abalone authority authorising a nominee of the authority holder to take abalone in lieu of the holder for a period not exceeding 21 days (“relief diving”);[25]
4.the holder of an abalone authority could “transfer” it by entering into a contract with a “transferee” to surrender his or her existing authority and for the “transferee” to apply for the grant of a new abalone authority;[26]
5.no person could hold more than one abalone authority.[27]
[23] Managed Fisheries Regulations 1971 (SA) reg 5.
[24] Managed Fisheries Regulations 1971 (SA) reg 35(5).
[25] Managed Fisheries Regulations 1971 (SA) reg 35(1).
[26] Managed Fisheries Regulations 1971 (SA) reg 35AA.
[27] Managed Fisheries Regulations 1971 (SA) reg 21A.
The policies and practices of the Fisheries Department included:
1.three abalone fisheries in South Australia were recognised, which included the Western Zone (encompassing Port Lincoln and coastal waters to the west and north thereof);
2.a limited number of 23 abalone authorities in the Western Zone were on issue at any one time;
3.there was no quota on the number of abalone which could be taken by an authority holder;
4.the Department would issue licences to abalone authority holders to employ one person (known as a “sheller”) to operate the boat and air supply for the diver and to shell the abalone but not to to dive for or take abalone.
The policies and practices of the Fisheries Department also included the following policies, known collectively as the “owner/operator policy”:
1.the Department would not issue an abalone authority to a company, a partnership or any entity other than the person physically taking abalone;
2.the Department would not issue more than one abalone authority to one person;[28]
3.the Department would not issue a licence under section 32 of the Act to employ an employee to physically take abalone (except by way of endorsement under reg 35(1) for relief diving);
4.the Department required that the abalone authority holder be in sole control of the abalone diving and taking;
5.the Department regarded the abalone authority holder as being required to conduct the operation for his or her own exclusive use and benefit.
[28] Pursuant to the Managed Fisheries Regulations 1971 (SA) reg 21A.
The relevant change to the fisheries licensing regime in 1980 was effected by amendments to the Managed Fisheries Regulations 1971 which came into force on 28 August 1980. The amendments included the addition of reg 35AA, which permitted for the first time a form of transferability of abalone authorities, and the change from an abalone permit solely attached to the fishing licence to an abalone authority linked to the boat registration as well as being endorsed on the fishing licence.
The text of the relevant regulations was as follows:
(5)A person shall not use a boat for the purpose of taking abalone, prawns or lobsters unless:
(a)     she is a boat for which an authority has been granted; …
…
(8)The authority … shall be issued by the Director and shall be in the form of an endorsement on the applicant’s fishing licence.
(9)(1) The owner for the time being of a boat may apply to the Director for the grant to him of an authority with respect to that boat.
…
(11)The Director may grant or refuse to grant an authority … and may … take into account such relevant matters as he thinks fit [including] … whether in his opinion:
(a)     the applicant is a fit and proper person and the applicant’s boat is fit for the purpose for which it is to be used;
…
(c)     the fish resources of the zone or zones to which the boat is, under regulation 12, assigned can be satisfactorily fished by the applicant;
(d)     the applicant has adequate equipment to ensure that all catches of fish are capable of being kept in a thoroughly wholesome condition until such time as the catch is landed …
(12)The Director shall, when granting or renewing an application for an authority or permit, specify the zone or zones to which the authority or permit shall apply, and, for [that purpose]… may take the following matters into consideration, namely:-
…
(b)     the success (or otherwise) of the fishing operations conducted by the holder of the authority or permit in the zone or zones (if any) to which he has been previously assigned;
…
(d)     the number of authorized boats or permit holders as the case may be already operating or expected to operate in any zone or zones;
(e)     the general situation prevailing or expected to prevail in the controlled fishery and the degree of success or expected degree of success of any fishing operation; and
(f)     any other relevant matter, fact or thing which, when considered jointly with one or more of the matters hereinbefore referred to, will enable the Director to justly and equitably assign the holder of an authority or permit to any particular zone or zones, provided however, that the need to preserve and improve the fish resources of the State shall, at all times, be regarded as the paramount consideration.
…
(17)(1) Where the owner of an authorised boat without first obtaining the consent, in writing, of the Director, grants or conveys a proprietary interest of any kind (whether legal or equitable) in that boat, to another person or to himself and another person the authority in respect of that boat shall, immediately the grant or conveyance becomes effective in law or equity, lapse. The Director may grant or refuse an application for consent under this regulation, and when considering an application, shall take into account all relevant matters, including those set out in regulation 12 to the granting or refusal of an authority.
…
(21A) No person shall be the holder of more than one of the authorities or permits listed
hereunder:
Abalone Authority
…
In July 1984, a new regime was implemented under the Fisheries Act 1982 (SA) and the Scheme of Management (Western Zone Abalone Fishery) Regulations 1984. The scheme was similar to the previous scheme, except abalone licences were issued instead of abalone authorities and the regulations explicitly contemplated control of the holder by another under a contract, arrangement or understanding.
In June 1991, a catch quota system was introduced in respect of abalone authorities.[29]
[29] Scheme of Management (Abalone Fisheries) Regulations 1991 (SA) reg 13.
Issues in the Edwards action
The amended statement of claim and amended defence in the Edwards action were tendered[30] on the basis that they were the pleadings as they stood at the relevant time, being the first half of 1995.[31] The relevant component of Mr Edwards’ case in relation to abalone was that Mr Edwards and his company were prevented by successive Directors of Fisheries from undertaking abalone taking businesses using various business structures, whereas on the true construction of the Fisheries Act and Managed Fisheries Regulations such business structures were lawfully available to them.
[30] Exhibits P7 and P28.
[31] The amended statement of claim (P7) had been most recently amended on 12 July 1991. The amended defence (P28) had been most recently amended on 23 June 1992 (further amendments contained in the document which was actually filed on 13 August 1997 are readily identified and can be ignored).
The relevant policies and practices which were pleaded by Mr Edwards and which were admitted by the Directors in their defence were as follows:
1.Mr Edwards (and other abalone authority holders) could not employ another person to dive for and take abalone (beyond relief diving);[32]
2.the Department required the surrender of the authority holder’s fishing licence and licence to employ on an application pursuant to reg 17 or reg 35(aa) to “transfer” an abalone authority to another person;[33]
3.the Department refused to consider or approve the “transfer” of an abalone authority except to a natural person acting solely for his own exclusive benefit;[34]
4.the Department refused to permit a corporate owner of a boat used to take abalone to be registered as owner or joint owner of the boat or to make application for an abalone authority in respect of the boat or make application for approval as “transferee” of an abalone authority in respect of a boat;[35]
5.the Department gave directions and acted on the basis that an abalone authority was not capable of being impressed with a trust binding the holder or of being held by or on behalf of a company or two or more natural persons.[36]
[32] Amended statement of claim [10] and [11], amended defence [6].
[33] Amended statement of claim [18B(i)]; amended defence [11(1)].
[34] Amended statement of claim [18B(ii)]; amended defence [11(1)].
[35] Amended statement of claim [18B(iv)]; amended defence [11(1)].
[36] Amended statement of claim [27(2)(a)]; amended defence [14(1)].
The Directors pleaded explicitly in their defence that the relevant Ministers had adopted a policy (described by the defence as “the owner/operator policy”) that:
1.control of the number of units of fishing effort and their capacity to exploit the resource was necessary for the economic management of the fishery;
2.in regard to abalone fishing, the diver was the unit of fishing effort; and
3.an abalone authority should be not be issued except to a natural person for his or her own exclusive use and benefit.[37]
[37] Amended defence [6(1)(b)], [6(3)(a)], [15(1)(b)], [(15)(3)].
Issues in the Edmunds litigation
The pleadings in the Pickering action, being the amended statement of claim, amended defence and amended reply, as at the first half of 1995 were tendered.[38] Mr Edwards gave evidence, which was confirmed by Mr Edmunds, that he was given access to and provided with copies of these pleadings by or under the authority of Mr Edmunds. Accordingly, these pleadings were known to both the plaintiffs and the defendants as at 1995.
[38] Exhibit P33. The amended statement of claim was dated 18 May 1993, the amended defence 21 May 1993 and the amended reply 15 June 1993.

The relevant issues in the Pickering action (largely mirrored in the Stratford action) included the following issues.
1.Whether the trust arrangement between Mr Pickering and Smoothpool created in October 1980 was unlawful or contrary to the owner/operator policy (as alleged orally by Mr Pickering in June 1982 and pleaded by the Pickerings in their defence), and in particular:
(a)    because the beneficial holder of the abalone authority was a company (Smoothpool) contrary to reg 21A;[39]
(b)    because an abalone authority could only be attached to a specific boat, the boat in respect of which the abalone authority was issued was the “Southern Ocean Diving” which was owned legally and beneficially by Mr Pickering, and accordingly Smoothpool could not hold a beneficial interest in the abalone authority;[40]
(c)    because Smoothpool did not propose to and could not personally undertake diving or taking of abalone;[41]
(d)    because an abalone authority could not be held on trust for another person;[42]
(e)    because the abalone authority was obtained from the Fisheries Department by reason of the non-disclosure by Smoothpool (and Mr Pickering) of the beneficial interest of Smoothpool in the abalone authority.
In effect, the Pickerings relied upon the owner/operator policy either as manifested in the legislation and regulations or in the policy and practices of the Department.
2.Whether the true value of the abalone authority in October 1982 at the time at which Mr Pickering purchased the beneficial interest in it from Smoothpool was $160,000 such that the purchase was effected for less than full consideration and was thereby voidable in equity.[43]
3.Whether the 1982 agreement and 1982 deed were procured by duress, being threats by Mr Pickering that he would disclose to the Department the trust arrangements in relation to both W17 and W10 which would result in their cancellation and that he would sue the Edmunds for damages for loss of profits on exploitation of W17 in the event that the Edmunds contested his repudiation of the trust.[44]
4.Whether the 1982 agreement and 1982 deed were made by the Edmunds under a mistaken belief that the trust was void for illegality.[45]
[39] Amended defence [10(b)(ii)].
[40] Amended defence [10(b)(ii)(B)].
[41] Amended defence [4(b)(v)] and [10(b)(ii)(D)].
[42] Amended defence [4(b)] and [10].
[43] Amended statement of claim [13], [16].
[44] Amended statement of claim [10], [14], [16(b)].
[45] Amended statement of claim [14(iii)], [17.1].
Overlapping issues
There were common issues between the two sets of litigation in respect of which Mr Edwards and the Edmunds had a common interest. Those issues comprised whether the Fisheries Act and Managed Fisheries Regulations validly:
1.precluded the holder of an abalone authority holding the authority on trust for another entity (person, partnership, company or discretionary trust);
2.precluded a company from being a beneficial owner of an abalone authority;
3.precluded an entity which was not the legal or beneficial owner of the registered boat from being the beneficial owner of an abalone authority attached to that boat;
4.precluded a person from being the registered holder and/or beneficial owner of two or more abalone authorities (involving the sub-issues whether reg 21A applied only to the registered holder or also to the beneficial owner and whether reg 21A was valid).
There were also common issues between the sets of litigation as to the policies and practices of the Fisheries Department, being whether they:
1.precluded the Department issuing an abalone authority to a person who would hold it on trust for another entity;
2.precluded the Department issuing an abalone authority where the beneficial owner was to be a company;
3.precluded the Department issuing an abalone authority where the beneficial owner did not have any interest in the registered boat;
4.precluded the Department issuing an abalone authority where the beneficial owner already had an interest in another abalone authority;
5.involved the Department taking steps to cancel or forfeit an abalone authority in the event that any of the above matters were not disclosed upon the application for the abalone authority.
In respect of these policies and practices, while there were common issues, the respective parties did not necessarily have the same interest. It was in Mr Edwards’ interest to establish that each of the policies and practices existed (coupled with establishing that they were unlawful). Insofar as the Edmunds were relying upon Mr Pickering’s alleged threats to report them to the Fisheries Department to overturn the 1982 agreement and deed, it may have been in the interests of the Edmunds to establish the existence of the policies. However, insofar as the Edmunds were defending the efficacy of the 1980 trust arrangements with Mr Pickering, it may have been in their interests to establish that the policies and practices did not exist.
Relevant authorities
As at the first half of 1995, there had been two relevant decisions of this Court concerning the fisheries licensing regime for abalone. Mr Edmunds gave evidence that he was aware of the first decision and at least later of the second decision and Mr Edwards gave evidence that he was aware of the second decision. I infer that each of Mr Edwards and Mr Edmunds was aware of both decisions by the beginning of 1995.
In April 1987, in Pennington v McGovern,[46] the Full Court held that an abalone licence under the 1984 fisheries licensing regime was capable of being held on trust for another person. The defendant had purportedly held his abalone licence on trust for a Mr Ashton. However, the Full Court relied upon a particular provision of the 1984 Regulations (reg 5(7)) which did not have a counterpart in the predecessor regulations.
[46] (1987) 45 SASR 27.
In March 1989, in Kelly v Kelly,[47] the Full Court considered whether an abalone authority under the 1980 fisheries licensing regime could be held on trust for another entity. The abalone authority was held by a husband. The issue arose whether he held it on trust for a partnership between his wife and himself. The Full Court held that the fishing licence with the abalone authority endorsed upon it were rights in the nature of property and were capable of being partnership assets. The Department was not a party to the proceedings and it does not appear to have been argued that the Act and Regulations precluded such a licence being held on trust for another. The Full Court went on to hold that, on the facts, it was not the intention of the parties that the licence and abalone authority be a partnership asset. In March 1990, the High Court dismissed the wife’s appeal against the decision of the Full Court.[48] While it does not appear to have been argued by the husband that the Fisheries Act and Managed Fisheries Regulations precluded the holding of an abalone authority on trust for a partnership, the High Court said:[49]
… there can be no doubt that the abalone authority gave rise to valuable rights which were capable of being held for the partnership in such a way as to constitute partnership property.
[47] (1988) 48 SASR 115.
[48] (1990) 64 ALJR 234.
[49] (1990) 64 ALJR 234 at 236.
Accordingly, as at the first half of 1995, the authorities did not conclusively establish that an abalone authority could be held on trust for another, but were encouraging in that respect.
4. Witnesses
For the plaintiffs, each of Mr Edwards and Mr Hopcroft gave evidence. For the defendants, Mr and Mrs Edmunds and Mr Noolan gave evidence. The defendants also called Lina Caballaro, who gave evidence on a single specific topic and was not cross-examined.
In assessing the credibility of the witnesses who gave evidence, I take into account that they were attempting to recall and describe events which in the main occurred 16 years ago and all of which occurred at least 10 years ago. This was in circumstances in which many of those events were not contemporaneously recorded or reflected in documents or other objective evidence. Unfortunately, I am unable to accept that any of the five substantive witnesses were reliable.
Mr Edwards
Mr Edwards gave differing accounts as to communications with Mr Edmunds in 1995. Given the passage of time since those communications, the mere fact that his version varied at different passages of his evidence in itself did not cause me concern as to his reliability. Indeed, if he had used identical words each time he related the content of a communication, that would have been suspicious in itself. However, I formed the view that the reason he gave differing versions was that he was assessing in different contexts which answer would best advance his case. Mr Edwards also gave differing evidence as to other matters which I considered adversely reflected on his credit.
1.As to the contents of the facsimile which Mr Edwards said that he sent to Mr Edmunds, in evidence-in-chief, he initially said that it read:
“Cliff, for me to assist you in the future I will assist you. I will continue to help in any way I can but I want 15 per cent of the licence, the winnings from Pickering”.[50]
[50]T76/24-28.
In cross-examination, Mr Edwards initially said that it read:
“I’m not going to continue to work for you. I want 15 per cent of the winnings”.[51]
[51]T350/4-9.
In contrast, later he said that he wrote that he wanted:
“15 per cent of the value of the licence if it was returned straight away and 15 per cent of any profits that were awarded as well as the licence being returned if Cliff was able to get it and there were any lost profits as a result of the trustee using the licence”.[52]
[52] T424/11-19.
The version given later was much more elaborate than the versions given earlier. This was in the context that counsel for the Edmunds had put that there had been no reference to a percentage of the value of the licence prior to becoming involved with Mr Noolan. [53]
[53] T385/7.
2.As to the subject-matter of the 15 per cent discussed during the telephone conversation which he said occurred immediately after the facsimile, at one point in cross-examination, Mr Edwards said:
AI didn’t have to say much because my fax spoke for me. He was on the phone saying “I’ve got your fax”, that’s the first thing “I got your fax through. You’re on, it’s a deal 15 per cent”.
QSo there was no discussion.
AI was on the way home for tea, there was no discussion at all.
QSo there was no discussion as to what the 15 per cent would be of.
AYes, what was included in my – yes, there was discussion. We talked about what was in the fax, I wanted 15 per cent of the winnings, namely 15 per cent of the value of the licence.[54]
[54] T424/29, T425/6.
In contrast, Mr Edwards later said that the conversation comprised:
Cliff said “I have just got your fax”. I spoke about it, I said “I have put in it that I want 15 per cent of the winnings; I want 15 per cent of the value of the licence if it is returned, and I want 15 per cent of any profits, any trading profits that are returned.” And he said “You’re on”, that’s it.[55]
[55] T426/2-8.
Mr Edwards later said that the conversation comprised:
I said to Cliff “You have just received my fax?” He said “Yes, I have got it”. I said “I am asking for 15 per cent of the value of the licence if you can get it back from Pickering, and I want 15 per cent of anything else awarded back if there are lost trading profits, etc” and he said “Yes, I accept that, it’s a deal, you’re on.”[56]
[56] T426/19-24.
3.As to splitting the 15 per cent, at one point in his evidence-in-chief, Mr Edwards said that the conversation consisted of Mr Edmunds saying:
“You’re on. The deal is accepted. I will pay 15 per cent winnings”
and Mr Edwards responding:
“As you know I am working closely with Barry Hopcroft. I’ll end up going halves with him but I want 15 per cent and we’ll halve it from here.”[57]
[57] T76/34-77/5.
By contrast, in cross-examination, Mr Edwards rejected the suggestion that the percentage discussed was 7.5 per cent, and said in relation to the initial discussion with Mr Edmunds following the fax “At that stage Barry wasn’t aboard”, implying that there was no mention of 7.5 per cent in the initial discussion.
Mr Edwards elaborated by saying:
“In time my side of the 15 per cent became 7 and a half per cent, but that’s as a result of the document we drew up to formalise the agreement.”[58]
4. As to whether he and Mr Edmunds agreed at any point that he would be paid separately for work he was to do, at one point in his evidence in chief, Mr Edwards said[59] that he said to Mr Edmunds (apparently when asked to do work on Mr Edmunds’ statement):
“Look, I just can’t do this sort of thing; it’s not part of my obligation to you in terms of our agreement. If you want me to do these extra things, I want some money for it”
In contrast, Mr Edwards went on say in evidence in chief[60] and in cross-examination[61] that there was no agreement at all (and impliedly no discussion) concerning his being paid prior to doing the work and prior to December 1998. I formed the impression that he gave this evidence because he perceived it would assist his case that the only agreement relating to work was the Shareholders Agreement and not any subsequent oral agreement (the latter being the defence case).
5.As to the degree of common issues between the Fisheries litigation and the Edmunds litigation and degree of common interest of himself and the Edmunds in relation to those issues:
(a)    at times, Mr Edwards was relatively expansive as to the degree of common issues and common interest;[62]
(b)    in cross-examination, Mr Edwards generally downplayed the commonality of issues and common interest[63] and I formed the impression that he did this when he perceived that would advance his case (eg aid his defence to the Edmunds’ case that he made representations about the level of common issues and interest).
6.As to Mr Edwards’ knowledge of the fisheries licensing regime and Departmental policies:
(a)    in evidence in chief, he spoke in relatively expansive terms of his knowledge;[64]
(b)    in cross-examination, when it was put to him in the context of alleged representations to Mr Edmunds about his knowledge, he downplayed his knowledge and what he had said to Mr Edmunds about it.[65]
[58] T385/22-24. Reinforced by Mr Edwards at T386/3-11.
[59] T283/31-34.
[60] T286/36-37.
[61] T572/14-574/19.
[62] T65/26-66/15; T342/3-14; T354/22-355/9.
[63] T347/27-38; T371/3-10; T617/2-12.
[64] T59/9-29; T67/19-64/3; T103/11-104/3.
[65] T338/27-34; T347/11-17.
There were occasions where Mr Edwards either failed to answer a question in cross-examination or gave a very long answer in respect of which I formed the impression that he was buying time within which to consider what substantive answer would best advance his case. Examples of those occasions are as follows.
1.Answering whether he intended to use in evidence answers by the Department to letters written by Sandy Edwards to the Department for the purpose of drawing out the Department as to its policies.[66]
2.Answering whether he was promoting to Mr Edmunds the joinder of the Department or Directors as defendants to the Edmunds litigation.[67]
3.Answering whether he ever asked Mr Edmunds for payment of $2,000 or any other sum of money.[68]
4.Answering whether he told Mr Edmunds that he was trying to get the Edwards documents released.[69]
5.Answering on the degree of commonality of issues and common interest.[70]
6.Answering whether Mr Edmunds told him he needed first to have his lawyers assess the Edwards documents.[71]
7.Answering whether he expected Mr Noolan to obtain point by point instructions from the Edmunds concerning the drafts of the Shareholders Agreement.[72]
[66] T304/26-305/21.
[67] T313/19-315/35.
[68] T348/18-349/10.
[69] T352/20-353/30.
[70] T358/27-361/34.
[71] T385/27-388/16.
[72] T445/33-446/35.
Mr Hopcroft
Mr Hopcroft’s evidence-in-chief was relatively straight-forward. However, in cross-examination he was often argumentative and/or evasive and answered questions in a manner which gave me the impression that he was seeking to advance his case as opposed to simply giving his honest best recollection of what had occurred.
Mr Hopcroft on several occasions went beyond answering questions about facts and volunteered arguments which supported his case (often by reference to documents which he had only seen in discovery).[73] Mr Hopcroft was on occasions evasive in answering questions in cross-examination.[74] These aspects of his evidence gave me the impression that Mr Hopcroft had in mind what would support his case in answering questions generally.
[73] T776/3-20; T795/8-19; T831/28-832/14; T839/24-30; T840/14-17.
[74] T799/10-38; T8204/6-11; T834/32-835/3; T836/14-837/12; T861/16-862/10; T886/17-888/14; T891/16-18; T895/35-896/11; T918/28-38; T921/24-28.
Mr Hopcroft had a relatively poor recollection of most of the events between 1995 and 1999 about which he gave evidence.[75] There were events of which he had no recollection and other events of which he recalled little more than the occurrence of the event itself. This is not surprising in itself given that the principal dealings with the Edmunds were by Mr Edwards and not Mr Hopcroft. However, it was in marked contrast with his evidence that he recalled the detail of certain key events, namely Mr Edwards’ account to him of the facsimile to and telephone discussion with Mr Edmunds,[76] the meeting at the Botanical Gardens Motel[77] and his dogmatism that there was no meeting with the Edmunds at his townhouse at West Lakes[78] even though his wife had recently told him that the Edmunds had been to the townhouse.[79] I formed the impression that Mr Hopcroft has been influenced, consciously or unconsciously, over the years by Mr Edwards’ account to him of what had occurred in 1995.
[75] T725/17-726/38; T730/34-731/34; T733/30-37; T738/28-739/5; T739/31-34; T740/12-25; T753/36‑38; T754/21-27; T760/13-23; T777/23-28; T816/12-15; T813/29-30; T841/8-32; T872/16‑24; T881/29-882/5; T923/37-924/2; T933/1-13.
[76] T713/27-714/26.
[77] T716/16-723/28; T747/26-751/24.
[78] T821/11-823/38.
[79] T825/358-826/9; T906/11-25.
Mr Hopcroft gave evidence in chief that he did not recall discussion at the Hamilton meeting about what later became the subject matter of clause 3.2 of the Shareholders Agreement (which set out procedures for the valuation of the licence).[80] In cross-examination, he said that he recalled discussion that the licence would be valued or a Judge could do it. When it was put to him that this was inconsistent with his evidence in chief about clause 3.2 he said “I’ll have to go with it. I didn’t recall it then and I’ll have to go with it.” While I do not consider that the two passages were in fact inconsistent, the fact that Mr Hopcroft was prepared to vacate his evidence of his recollection merely because he perceived he had given contrary evidence earlier reflects adversely upon his giving evidence based on and to the best of his recollection.
[80] T742/1-3.
Mr Noolan gave evidence that Mr Hopcroft came to his office in about October 1985 demanding money from the Edmunds and being very aggressive.[81] Mr Hopcroft denied this when it was put to him in cross-examination.[82] Mr Hopcroft went so far as to say “I would die under torture before I would say something like that … that’s how adamant I am.” Despite my reservations about other aspects of Mr Noolan’s evidence, I have no reason to doubt his evidence about what occurred in about October 1995. My acceptance of his evidence in that respect reflects adversely on Mr Hopcroft’s credibility.
[81] T1347/23; T1348/2.
[82] T860/17-861/9.

Mr Hopcroft gave evidence that the threat by Philips Fox on 29 January 2002 of a counterclaim for wasted costs was of overwhelming concern to him and a factor in his not issuing proceedings until 2006.[83] I found this evidence simply not credible.
[83] T782/5-783/9.
Mr Edmunds
Mr Edmunds had given evidence at the trial of the Pickering litigation on 21 June 1999 before Lander J concerning an agreement with Messrs Edwards and Hopcroft. The relevant passage was as follows:[84]
[84] Exhibit D29 Volume 2, pp 88-92.
XXN
Q.Do they stand to benefit from the proceeds of a successful conclusion of this case so far as Smoothpool is concerned.
A.There was an agreement, a separate agreement made up with Hopcroft and Edwards, to an effect of, I’m not too sure what the percentage was, but they were to receive a certain percentage if we were successful, if they were able to assist at all.
HIS HONOUR:
Q.They would receive a percentage, would they, of any award of damages in this case, is that the agreement.
A.I am not too sure just what the agreement says now. It was to the effect of a percentage of the licence or damages, I’m not too sure. …
XXN
Q.Can you just explain how they would receive a percentage of the licence.
A.You would have to ask them that. As far as I can recall. If the licence went to Smoothpool, and if they upheld their duties, somehow they were entitled to 7 and a half per cent …
Q.Who negotiated that agreement on behalf of Smoothpool.
A.I was involved with discussions with Edwards and Hopcroft, and after that it was drawn up between those two, and I think their lawyer and our accountant …
Q.And you were the person who, on behalf of Smoothpool, finally agreed the terms.
A.That would be so, yes …
Q.When you said that they did not have a financial interest in Smoothpool, that was not correct.
A.I’m not too sure just how it all equates with what they are entitled to.
Q.They are shareholders and have been shareholders since 1995.
A.Since ’95 yes.
Q.And they have the agreement to receive 7 and a half per cent, which you have already described.
A.I believe so, I don’t know.
HIS HONOUR:
Q.    Can you remember what you negotiated; yes or no.
A.    Yes.
Q.    What did you negotiate.
A.    7 and a half per cent.
Q.    Of what …
A.As far as I can recall, if the licence went to Smoothpool, the agreement stated that they would obtain 7 and a half per cent of the licence, and I would believe that would also entitle them to 7 and a half per cent of the proceeds.
Q.Did you agree, on behalf of Smoothpool, that they would obtain 7 and a half per cent of the licence, and 7 and a half per cent of the income from the licence.
A.I think so, yes.
In his evidence before me, Mr Edmunds said that:
1.his evidence that he had negotiated on behalf of Smoothpool was wrong: his discussion with Mr Edwards at the Central Market Café was only a “personal discussion”;[85]
2.his evidence that he had negotiated an agreement to pay Hopcroft and Edwards 7.5 per cent each of anything was wrong;[86]
3.when he said in 1999 that he did not have a copy since 1995, he was not referring to the Shareholders Agreement but rather to the Minutes of Meeting of the Directors of Smoothpool;[87]
4.his evidence that he had agreed on behalf of Smoothpool that they would obtain 7.5 per cent of the licence and 7.5 per cent of the income was wrong and he was confused when he gave that evidence.[88]
[85] T1164/18-29.
[86] T1165/34; T1166/8.
[87] T1166/18-24.
[88] T1166/31; T1167/18.
Mr Edwards’ explanation for the errors which he said he had made in his evidence before Lander J in 1999 was that he was confused when giving his evidence because he was under pressure and uptight.[89]
[89] T1167/29; T1168/8 ; T1171/3-23; T1291/15-1305/6.
However, it is evident from the documents in evidence before me that the topic of the Shareholders Agreement and of Mr Edwards’ and Mr Hopcroft’s involvement in and with Smoothpool had been the subject of considerable attention by or to the knowledge of Mr Edmunds in the period leading up to his giving evidence on 21 June 1999. That attention included:
1.On 13 and 14 April 1999, Mr Edmunds had been cross-examined concerning Mr Edwards and Mr Hopcroft. He gave evidence that they had become directors in about 1995 because they were involved in litigation with the Fisheries Department and one of their stipulations for assisting was that they become directors.
2.On 24 April 1999, Mr Edmunds had received a facsimile from Mr Edwards referring to that evidence. The facsimile included the following passage:
Can you also fax me over a copy of the Agreement to look at over the weekend in case I am subpoenaed by Clayton. Also the section of transcript in which Clayton questioned you about my directorship. Was the Cowell mentioned in Court the same (Cowell) who prepared the Agreement do you know? What would be your ideas of any response by me if subpoenaed?
3.On 3 May 1999, Mr Edmunds had received a facsimile from Mr Edwards saying that Mr Edwards had ordered historical extracts of various companies, including Smoothpool and Dadeeton. Mr Edwards had said:
Will ring Jon Noolan some time today or tomorrow to get copy and details of Agreement.
4.On 14 May 1999, Mr Edmunds had sent a facsimile transmission to Mr Edwards. He said:
P Fox have “discovered” a copy of our agreement, which was found in doc’s from Armour.
5.On 29 May 1999, Mr Edmunds had received from Mr Hopcroft an agenda for an extraordinary meeting of Smoothpool which includes the following items:
3.Examination of sworn evidence given by Mr and Mrs Edmunds in the Pickering matter in relation to [Smoothpool, Dadeeton and the Family Trust].
8.Clarification of agreement between Hopcroft and Edwards with [Smoothpool] and [Mr and Mrs Edmunds] in 1995.
I formed the impression that Mr Edmunds was attempting to rationalise the answers which he gave at the trial in 1999, that the reason he gave for those answers (he was confused) was specious and that he was not being frank in relation to that evidence.
The Edmunds’ case was opened on the basis that the Edmunds were not prepared to give away a share or percentage of Abalone Licence W17. The plaintiffs tendered a facsimile message from Mr Edmunds to Cheerful Holdings dated 7 August 1997 in which Mr Edmunds said that he was seeking $100,000 to finance the Edmunds litigation and in return he offered as one alternative “Share of Licence (if returned by Court)”.[90] Mr Edmunds gave evidence that he meant by those words:[91]
Similar to what we do with our other licence with the bank, we use it as collateral with the quota itself, with a small percentage of the quota for – for example $100,000 - it may only have been one unit of quota of the licence for that amount.
[90] Exhibit D30 (formerly Exhibit P20).
[91] T1156/16-21.
Mr Edmunds was suggesting in his evidence that he was not offering any share of the licence, but rather merely offering to pledge one or more quota units associated with the licence by way of security for the repayment of a loan.[92] However, the letter provided as follows:
We are seeking $100,000, to get us close to trial time in 3-6 mths.
In return we offer – choices
1.    Repaid from settlement, plus 50%.
2.    Share of licence (if returned by Court).
3.    Loan agreement – terms suitable to each.
4.    What best suits you or your investor.
[92] Mr Edmunds had given evidence that he granted security over part of W10 to the Commonwealth Bank in relation to a loan of $800,000 (T1125/24-1126/15), but that was in 1998 after the Cheerful Holdings correspondence.
I consider that Mr Edmunds’ gave this explanation to avoid the suggestion that he would have been willing to agree to Messrs Edwards and Hopcroft having a share of the licence. Alternatives 1 and 3 involved treating the $100,000 as a loan (with a fixed return of 50 per cent or interest) in comparison with alternative 2, which simply offered a share of the licence. Moreover, offering a share of the licence merely as collateral security would have been illogical because it would have no value if the litigation were unsuccessful and would probably be otiose if the litigation were successful.
Mr Edmunds minimised his understanding of the issues in the Edmunds litigation, the significance of Mr Pickering’s assertion that the trust was unlawful and of his threats to report the position concerning W10 and W17 to the Department, the commonality of issues between the Edmunds and Fisheries litigation and the potential significance of the Edwards documents and of the Answer to the Case Stated to his litigation. I formed the impression that he did this because he perceived this would advance his defence that Mr Edwards misrepresented the relevance and importance of the Edwards documents and the condition concerning them was never satisfied.
1.Mr Edmunds minimised his fear of Mr Pickering’s threats to report the position concerning W10 and W17 to the Department and said that he feared far more a counterclaim by Mr Pickering.[93]
2.Mr Edmunds minimised the relevance of the Edwards documents and the relevance of the Answer by the Full Court to the Case Stated in the Edwards action.[94]
3.Mr Edmunds maintained his position concerning the Case Stated even when his own contemporaneous document was put to him saying “The most important issue for submissions is the legality of the trust agreement”.[95]
[93] T995/31-996/14.
[94] T1098/30-1102/25; T1210/37-1213/23; T1215/5-1216/16.
[95] T1262/30-1263/11.
Mr Edmunds gave inconsistent evidence concerning discussion about the subject matter to which it was proposed by Mr Edwards that the percentage (whether it be 7.5 or 15 per cent) would be applied to calculate the amount payable by the Edmunds under the proposal.
1.He gave evidence that it was confined to compensation the Edmunds may receive for past loss of income while Pickering was using the licence and did not extend to either any future income or to any capital value of the licence.[96]
2.In contrast, on other occasions he gave evidence[97] (as he had given evidence before Lander J in 1999)[98] that Mr Edwards and he used the more general term “winnings”.
3.I formed the impression that Mr Edmunds gave his evidence about the subject matter being confined to past lost income to advance his case.
[96] T1049/14-20; T1052/7-10; T1067/14-21; T1193/1-7; T1198/22-26.
[97] T1038/7-32; T1178/19-22; T1245/2-3.
[98] Exhibit D29 Volume 2, pp 88-92.
Mr Edmunds gave repeated evidence that he told Mr Noolan to draw out as long as he could dealing with the proposal for the appointment of Messrs Edwards and Hopcroft as directors to give Mr Edmunds time to obtain access to and assess the Edwards documents first.[99] This is in stark contrast to Mr Noolan’s actual conduct in telling Cowell Clarke that his clients were pushing him to act quickly.[100] I formed the impression that Mr Edmunds gave this evidence to advance his case that he was not keen to do any deal with Messrs Edwards and Hopcroft.
[99] T1053/35-1054/7; T1237/32-1238/8; T1198/4-10; T1202/34-36.
[100] Exhibit D4 vol 1 tabs 19 & 21.
Mr Edmunds gave evidence that his discussions with Mr Edwards in March/April 1995 did not address assistance by Mr Edwards but were exclusively confined to provision of the Edwards documents and no other or more general assistance.[101] I regard this as an extreme position adopted to advance his case. It was in stark contrast to his evidence in 1999 before Lander J which referred to general assistance.
[101] T1186/5-11; T1186/38-1189/28.
Mr Edmunds was vague or evasive on a number of issues.
1.He was initially very vague in response to questions about when and where the meeting of directors of Smoothpool took place in respect of which he had signed minutes showing the meeting at Mr Noolan’s office on 30 June 1995.[102] Ultimately, he said that the minutes were probably signed at Streaky Bay and probably after 30 June 1995 and there was no official meeting at such.[103] I accept the latter evidence, but consider that his initial evidence was deliberately vague to avoid being confronted with an allegation that he had seen the Shareholders Agreement in Mr Noolan’s office on 30 June 1995 or alternatively had signed false minutes.
2.He was evasive in attempting to explain how his making Messrs Edwards and Hopcroft directors and shareholders was consistent with his evidence that he was not prepared to consider any proposal from them until the documents were established as being vital.[104]
3.He was evasive about whether he discussed with Mr Noolan at the Hyde Park Hotel instructing solicitors to draw up documentation for changing the Memorandum and Articles of Association.[105]
4.He was evasive when put to him that the purpose of the Pickering action was to get the licence back to the Edmunds Family Trust.[106] I formed the impression that this was because he did not want to concede that the Trust would benefit via its trustee (whether the trustee be Smoothpool as originally or Dadeeton).
[102] T1061/34-1062/22; T1230/15-1231/5.
[103] T1070/37-1071/9; T1232/23-26; T1233/37-38.
[104] T1194/16-1197/6.
[105] T1199/12-1201/21.
[106] T1220/21-1221/17.
Mrs Edmunds
Mrs Edmunds, like Mr Hopcroft, also gave her evidence in a straightforward way in evidence-in-chief. However, in cross-examination, she was on several occasions argumentative, evasive and/or belligerent. I formed the impression that she had a very strong dislike for Mr Edwards and Mr Hopcroft and this action which they have brought against her and is not now able to give an objective account of what occurred in 1995 due to the strength of her feelings.
Mrs Edmunds was on occasions dogmatic and/or extreme in her evidence both in the manner in which she gave, and the content of, her evidence. In those cases I formed the impression that Mrs Edmunds was giving evidence which she perceived would advance her case.
1.In relation to facsimiles received from Mr Edwards, she described them as “garbage” and “dribble” and made gratuitous comments about them.[107] I consider from Mr Edmunds’ evidence about them and my own perusal of those which were tendered that her evidence was an exaggeration.[108]
2.In relation to the discussion at West Lakes, she gave evidence that Mr Edwards and Mr Hopcroft said that the Edwards documents were “guaranteed that they would win us the case”.[109] I consider that this was an exaggeration of what was said by Mr Edwards and Mr Hopcroft.
3.In relation to the Hyde Park Hotel meeting, she gave evidence that she told Mr Noolan emphatically that she would never ever agree to the proposal by Mr Hopcroft summarised in the 12 April memorandum (involving payment of 15 per cent of the proceeds of the Edmunds litigation).[110] This is in stark contrast with Mr Noolan’s subsequent conduct in writing to Cowell Clarke on 20 April 1995 saying that the Edmunds were prepared to agree to that proposal. It was not corroborated by either Mr Noolan or Mr Edmunds. While I do not find that Mrs Edmunds or Mr Edmunds told Mr Noolan that they agreed to the proposal, I do not accept Mrs Edmunds’ evidence that she emphatically rejected it and consider that she exaggerated her reaction to Mr Noolan.
4.In relation to the meeting in November 1996, she gave evidence that Mr Tilmouth QC said that the Edwards documents had no relevance to the Edmunds’ case and may be contrary to it and that she was completely gutted by his advice.[111] This is in stark contrast to Mr Tilmouth QC’s account of his advice set out in his letter of 17 December 1996. The principal thrust of his advice as therein recorded was that the Edwards documents were no longer necessary given the favourable outcome of the Case Stated (which was manifestly positive and not negative news for the Edmunds). Reference to the relevance of the documents was very much secondary to the primary point.
[107] T1497/9-13.
[108] T1415/30-32.
[109] T1421/19-22; T1421/33-35.
[110] T1427/5-11.
[111] T1450/19-1453/17.
Mrs Edmunds gave inconsistent versions about why Mr Edmunds told her that they needed to pay money to Messrs Edwards and Hopcroft in around November 1995.
1.In evidence in chief, she said that Mr Edmunds said it was to enable the documents to be given up and also “something to do with becoming directors and shareholders”.[112]
2.In cross-examination, when put to her that the payment was to do with their becoming directors, she denied that.[113] I formed the impression that this was because she did not want to make a concession which might harm her case.
[112] T1447/21-1448/8.
[113] T1499/5-1500/5.
Mrs Edmunds was evasive, argumentative and/or belligerent in answering questions in cross-examination on a number of occasions in respect of which I formed the impression that she did not want to make a concession which might harm her case.
1.When questioned about her understanding from Mr Noolan that Messrs Edwards and Hopcroft wanted to be a paid a percentage of the proceeds in return for the Edwards documents, she resisted the suggestion that she understood this.[114] This was in contrast to her evidence in chief[115] when she said that she understood this from what Mr Edmunds told her after the Central Market café meting.
2.When questioned about when Mr Edmunds told her about the Shareholders Agreement, she was not willing to say whether it was soon after June 1995 or years later.[116]
3.When questioned about whether the Edmunds litigation was designed to recover W17 for the Edmunds Family Trust and the interest which Dadeeton therefore had in the litigation, she was evasive.[117]
4.When questioned about the possibility that Messrs Edwards and Hopcroft might have some limited role as directors of Smoothpool,[118] she was argumentative in contending that Mr Hopcroft did nothing and Mr Edwards had been paid for assistance he provided.[119]
[114] T1483/29-1487/38; T1490/3.5-1491/24.
[115] T1423/4-14.
[116] T1495/15-1496/10.
[117] T1504/7-36.
[118] T1500/19-1501/25.
[119] T1502/20-31.
The plaintiffs were critical of Mrs Edmunds’ evidence explaining what she meant when she gave evidence before Lander J on 11 and 19 May 1999. Mrs Edmunds gave the following evidence on 11 May:
QDo they [Messrs Edwards and Hopcroft] have any financial interest in Smoothpool.
ANo, they do not, other than a single share.
QDo they have any financial interest in the outcome of these proceedings.
AYes.
QWhat is that.
AIf the resolution is – it’s in the discretion of the directors what, you know, what happens on a result of the case.
QIs that an arrangement which is recorded in writing.
AYes.
QDo you have that.
AI don’t have the document at the moment, no …
QWhere is the document.
AI don’t know offhand, but I am sure I could locate one.
On 19 May, under cross-examination by counsel for Stratford & Co, Mrs Edmunds gave evidence as follows:
Q… You were asked some questions by Mr Clayton about an agreement, as it were, that was entered into with the directors Messrs Edwards and Hopcroft, do you recall that.
AYes
QWere you able to locate that document.
AYes
QWhat’s happened to that document.
AI don’t know, my counsel’s got it. I’ve got no idea. I heard that it was located. I didn’t locate it myself. I just heard it was located.
The plaintiffs contend that the document to which Mrs Edmunds referred in those passages was the Shareholders Agreement. In her evidence before me, Mrs Edmunds said that she was referring to the memorandum and articles of association of Smoothpool (as amended in July 1995) and to the discretion of the directors to pay dividends in relation to the non-cumulative preference shares.[120]
[120] T1466/6-1469/7; T1470/8-1472/27.

Clauses 2 and 3.1 overlap to the extent that both address the value of the licence. To the extent that there is a conflict between those two clauses, clause 3.1 would prevail because it is more specific and in any event less ambiguous than clause 2.
Clauses 2 and 4 at first sight also appear to overlap, in that they both encompass an award of damages or compensation. However, clause 4 expressly states that it addresses “loss of income” (which is not the same as the subject matter of clause 2) and says explicitly that the loss addressed is “in addition to or not part of” the damages the subject of clause 2. Hence the clauses must be construed as not overlapping. I therefore construe clause 4 as addressing revenue losses (eg loss of revenue, income, profit) and clause 2 as addressing capital losses (eg, loss of the value of the licence if it were not to be returned by the Pickerings).
In respect of the provisions of clause 3.1 addressing the value of the licence if reinstated, I construe the clause as providing that it is only the entity to whom the proprietorship is reinstated which has a liability to pay 15 per cent of the net value of the licence.
In relation to clauses 2 and 4, I construe their provisions (consistently with clause 3.1) distributively such that it is only the entity to whom the damages or compensation are payable which has a liability to pay 15 per cent of the damages or compensation.
In accordance with the above construction, the Edmunds contend that none of the defendants are liable to pay anything pursuant to the contract because:
1.Mr and Mrs Edmunds did not receive the licence or any damages or compensation;
2.Smoothpool did not receive the licence or any damages or compensation;
3.Dadeeton is not a party to the contract (even though it did receive the licence and compensation).
Estoppel by representation
The plaintiffs contend that the intent and purpose of the contract was that the plaintiffs would receive 15 per cent of the proceeds of the Edmunds litigation in the event that the litigation was successful, regardless of which entity actually received the benefit. They contend that Dadeeton, by Mr and Mrs Edmunds, represented to the plaintiffs prior to their entry into the contract that Smoothpool (not Dadeeton) was the trustee of the Edmunds Family Trust and Smoothpool (not Dadeeton) would receive the licence and any damages or compensation in the event that the Edmunds litigation were successful. They contend that they relied upon the representation and the common intention and purpose in entering into the contract. They contend that they will suffer detriment if the Edmunds are permitted to rely upon Dadeeton not being a party to the contract and Smoothpool not receiving any benefits pursuant to the Edmunds litigation in answer to their claim and that it is unconscionable for the Edmunds in the circumstance to do so.
I find that Mr Edmunds did represent to Mr Edwards (and in turn Mr Edwards to Mr Hopcroft) that Smoothpool was the trustee of the Edmunds Family Trust, that any reinstatement of the abalone licence or payment of damages or compensation to the Edmunds Family Trust would be received by Smoothpool and that such benefits would be the subject of the percentage payable to the plaintiffs in the event that the parties entered into the proposed agreement. This representation was made by Mr Edmunds giving to Mr Edwards the statements of claim in the Pickering and Stratford actions which effectively pleaded those matters (or authorising Mr Armour to do so), coupled with his not telling Mr Edwards that Dadeeton had been the trustee of the Edmunds Family Trust since 1983. I hold that each of Smoothpool and Dadeeton were bound by the representation made by Mr Edmunds because he was effectively their controlling mind and will in respect of the Edmunds litigation and associated matters (Mrs Edmunds deferring to him generally in relation to such matters) and because the representation related to the Edmunds Family Trust and its trustees (which were in fact Smoothpool and Dadeeton successively).
I find that each of Mr Edwards and Mr Hopcroft believed that Smoothpool was trustee of the Edmunds Family Trust and relied upon the representation in entering into the contract and that, if they had known the true position, they would have insisted upon Dadeeton being a party to the contract.[317]^,[318] I find that, in that event, Mr Edmunds would have ensured that Dadeeton became a party to the contract.
[317] T81/18-22; T238/11-241/25.
[318] T712/7-35.
I find that Messrs Edwards and Hopcroft will suffer detriment if Smoothpool and Dadeeton are permitted to depart from the basis of the representation, and that it is unconscionable for them to do so.
I conclude that Dadeeton is estopped from denying that it is a party to the contract or bound by the terms of the contract as if it were a party to the contract. If I had not reached that conclusion, I would have concluded that Smoothpool is estopped from relying upon the fact that it ceased to be trustee of the Edmunds Family Trust in 1983 to deny that it is liable under clauses 2, 3 or 4 of the Shareholders Agreement to pay a percentage of the proceeds of the Edmunds litigation to the plaintiffs.
Estoppel by convention
I find that Mr Edmunds did not make the representation deliberately in the sense that he knew at the time that it was false, but rather that all parties proceeded on the common basis and assumption that Smoothpool was the entity which was entitled to recover the licence and any damages or compensation on behalf of the Edmunds Family Trust and that, if the parties entered into the contract, the plaintiffs would be entitled to a percentage of the proceeds of the Edmunds litigation received by or on behalf of the Edmunds Family Trust.
In these circumstances, Messrs Edwards and Hopcroft and the Edmunds adopted a convention to the effect of that assumption. The plaintiffs would suffer detriment if the Edmunds were permitted to depart from that convention and it is unconscionable for them to do so. In those circumstances, Dadeeton would be estopped from denying that it is a party to the contract or bound by the terms of the contract as if it were a party to the contract.
9. Condition precedent to contract
The Edmunds contend that, if there was a contract entered into around July 1995, it was subject to a condition precedent that the Edward documents could be legally produced to the Edmunds and their legal advisors assessed them as being relevant and important to the Edmunds’ case in the Edmunds litigation.
The Edmunds’ case in this respect is based on what Mr Edmunds said in evidence that he told Mr Edwards at the Central Market café meeting in March or early April 1995.
Following the Central Market café meeting, a number of drafts of the Shareholders Agreement were prepared (albeit unbeknown to the Edmunds). None of those drafts made reference to such a condition. The partially executed Shareholders Agreement which Mr Edmunds saw in July 1995 made no reference to any such condition. In these circumstances, Mr Edmunds’ statement back in March or April 1995 was superseded by the conduct of the parties (in the event that, contrary to my earlier conclusion, that conduct gave rise to a contract). That statement falls into the same category as the other discussions between the parties in March and April 1995. It is not suggested that any of those discussions constituted the contract in themselves. They merely had the status of pre-contractual negotiations.
It is of course possible for the parties to enter into an overriding agreement that a contract will not come into effect unless a particular condition is satisfied. Such an overriding agreement could, in theory, be oral even though the contract is written. However, at the time of the Central Market café meeting, no document or agreement had yet been drawn up. There was no subsequent reiteration by the Edmunds of such a condition over the period from May to July 1995 during which drafts of the Shareholders Agreement were prepared and (on the present premise) the contract was entered into.
The Edmunds contend that an explanation for the omission of such a condition from the Shareholders Agreement was that the parties (and particularly Messrs Edwards and Hopcroft) did not want to have any written reference to the Edwards documents because they knew that Messrs Edwards and Hopcroft were not at liberty to disclose the contents of those documents to the Edmunds or others. However, the preclusion on disclosure of the contents of the Edwards documents would not have prevented the inclusion of such a condition in the contract. In any event, this contention by the Edmunds does not detract from my conclusion that there was no overriding condition precedent to the Shareholders Agreement.
10. Performance of and entitlements pursuant to contract
As observed above, the evidence of Messrs Edwards and Hopcroft was vague as to the detail of the assistance which they in fact provided to the Edmunds in connection with the Edmunds litigation. It is clear that they did provide some measure of assistance.
The definition of the assistance to be provided in the Shareholders Agreement itself was vague. Recital D refers merely to Messrs Edwards and Hopcroft having “experience which would assist Smoothpool and the Edmunds in the conduct of the actions” and Recital C recites that “Hopcroft and Edwards have agreed to assist Smoothpool and the Edmunds in the actions”. Clause 1 incorporates the Recitals as an operative part of the agreement and clause 7 provides that “Hopcroft and Edwards will at their own expense fully, willingly and promptly at all times during this agreement, give to Smoothpool, the Edmunds and their legal or other advisors the full benefit and assistance of Hopcroft’s and Edwards’ knowledge and experience in connection with the actions”.
The defendants do not identify any occasion on which Messrs Edwards and Hopcroft refused or failed to provide assistance in connection with the Edmunds litigation.
In these circumstances, I find that there is no impairment, by reason of non‑performance of their obligations, to the plaintiffs recovering 15 per cent of the proceeds of the Edmunds litigation.
I find that Messrs Edwards and Hopcroft would, if a contract had existed, each have been entitled to 7.5 per cent of “the net value of the licence” as against Dadeeton. There are issues between the parties as to the meaning of the term “net value of the licence” and as to the quantum thereof. It was agreed that that quantum would be assessed at a subsequent hearing in the event that the plaintiffs were otherwise successful.
I also conclude that each of Messrs Edwards and Hopcroft would, if there were a contract, have been entitled to 7.5 per cent of the damages or compensation received by Dadeeton from the Pickerings pursuant to the judgment ordered by Lander J. There are also issues between the parties as to the calculation of such damages or compensation for the purpose of and within the meaning of clauses 2 and 4 of the Shareholders Agreement. Again, it was agreed that the quantification of the plaintiffs’ entitlement be deferred to a subsequent hearing in the event that the plaintiffs were otherwise successful.
The defendants plead that the plaintiffs actively hindered them in the conduct of the Edmunds litigation by promoting issues relevant only to the Edwards and Hopcroft actions. This plea refers to statements made from time to time by Mr Edwards to Mr Edmunds that the Edmunds should consider joining the Department of Fisheries as an additional defendant or making similar claims to those made by Messrs Edwards and Hopcroft in their actions.
These statements were merely suggestions for the Edmunds to consider and either adopt or reject. They do not amount to hindrance, let alone active hindrance. They do not impact upon the question whether the plaintiffs performed their obligations under the contract.
11. Misrepresentation
The defendants contend that Messrs Edwards and Hopcroft represented to the Edmunds that:
1.they had developed a special knowledge of the fisheries regulatory regime which was important to the Edmunds litigation;
2.the Edwards documents would win the Edmunds’ case or were guaranteed to do so; and
3.the Edmunds could legally use the Edwards documents in the Edmunds litigation (by virtue of Messrs Edwards and Hopcroft becoming directors and shareholders of Smoothpool or otherwise).
The Edmunds contend that each of these representations was false, that they relied on them and were induced thereby to enter into the contract, and that in the circumstances the Edmunds were entitled to and did rescind the contract.
Representations
I have found that Mr Edwards did not represent to Mr Edmunds that he had developed a special knowledge of the fisheries regulatory regime at the 1994 Hamilton meeting. Mr and Mrs Edmunds did not give evidence that such a representation was made at the West Lakes meeting or the Central Market meeting.
I have found that Mr Edwards and Mr Hopcroft did say that they considered the Edwards’ documents to be “hot” and did say that they believed that they would assist the Edmunds’ case. However, they did not represent that the documents would win the Edmunds’ case or were guaranteed to do so.
I have found that Mr Edwards represented to Mr Edmunds that making himself and Mr Hopcroft directors and shareholders of Smoothpool would facilitate obtaining access to the Edwards documents. However, he did not represent that it would overcome the legal barriers to disclosure to or use of the Edwards documents for the purposes of the Edmunds litigation.
Falsity
As to the first representation, I find that Mr Edwards had in truth developed a special knowledge of the fisheries regulatory regime. The defendants in their closing address did not appear to dispute this, but contended that the representation was false because Mr Edwards’ knowledge was not superior to that of the Edmunds’ legal team and because his knowledge was irrelevant to the Edmunds litigation.
1.As to the first proposition, Mr Edwards did not represent that his knowledge was superior to that of the Edmunds’ legal team and in any event the defendants have failed to prove that it was not superior. The evidence demonstrates that on a number of occasions the Edmunds’ legal team met with Mr Edwards and requested and received his assistance in relation to the fisheries regulatory regime.
2.In relation to the second proposition, the defendants have failed to prove that Mr Edwards’ knowledge was not relevant to the Edmunds litigation. On the contrary, for the reasons set out in section 3 above, I find that, as at 1994 and 1995, the fisheries regulatory regime and Mr Edwards’ knowledge of it was relevant to the Edmunds litigation.
3.Accordingly, if (contrary to my findings) Mr Edwards made the representation alleged, it has not been proved to be false.
As to the second representation in relation to the relevance of the Edwards documents to and assistance in the Edmunds litigation, the representation which I have found was made concerned Mr Edwards’ state of mind (ie, his belief as to relevance and assistance) as opposed to the objective fact of relevance and assistance. Whatever special knowledge Mr Edwards had developed of the fisheries regulatory regime, it is clear that the Edmunds’ legal advisors had the capability of identifying the relevant issues in the Edmunds litigation and what documents were relevant to that litigation. In those circumstances, Mr Edwards’ statements could only be understood as a statement of his own belief, and the defendants have failed to demonstrate that Mr Edwards did not hold that belief. In any event, Mr Armour himself formed the view that the Edwards documents were relevant and would be of assistance, because he said exactly that in his letters to the Crown Solicitor and in his affidavits. In these circumstances, the representation which I have found was made by Mr Edwards was not proved to be false.
As to the third representation that Messrs Edwards and Hopcroft becoming directors and shareholders of Smoothpool would facilitate obtaining access to the Edwards documents, such a representation is manifestly false. A person subject to the implied obligation not to use documents obtained under compulsion in one action for any other purpose cannot avoid that obligation by virtue of being or becoming a director or shareholder of a company which wishes to use the documents in another action. The plaintiffs did not contend otherwise.
Reliance
In relation to the first representation (concerning Mr Edwards’ special knowledge of the fisheries regulatory regime), neither Mr nor Mrs Edmunds gave evidence that they relied upon that statement or were induced thereby to enter into the contract or agree (in any manner) to pay a percentage of the proceeds of the Edmunds litigation. I find that they did not so rely.
In relation to the second representation, Mr Edmunds’ evidence was that he said to Mr Edwards at West Lakes “I have to have my legal advisors agree with you and for them to say that the documents are relevant” and at the Central Market café “I will look at that if they are vital to winning our case…If your documents are going to be vital to our case, if you can get them to Mr Tilmouth and he approves them I will look at … your proposal”.[319] This demonstrates that Mr Edmunds did not place reliance upon Mr Edwards’ assertions, but was only prepared to rely upon the opinions of his legal advisors.
[319] T1038/30-32; T1039/3-6.
In relation to the third representation (concerning use of the Edwards documents after Messrs Edwards and Hopcroft became directors and shareholders of Smoothpool), neither Mr nor Mrs Edmunds gave evidence that they believed this or relied upon it or were induced thereby to enter into the contract or agree (in any manner) to pay a percentage of the proceeds of the Edmunds litigation. Mr Armour had written to Mr Edmunds on 5 May 1995 referring to the prospect of Messrs Edwards and Hopcroft becoming directors and shareholders. It is inherently unlikely that Mr Edmunds would have proceeded on the basis that making the plaintiffs directors or shareholders of Smoothpool would obviate any legal difficulties in accessing the Edwards documents without seeking advice from Mr Armour, or that Mr Armour would have advised that it could obviate those legal impediments. I find that Mr and Mrs Edmunds did not so rely.
I conclude that reliance and inducement have not been made out.
Rescission
If the alleged representations had been made, were false and induced the Edmunds to enter into the contract, prima facie they would have been entitled in equity to rescind the contract for misrepresentation.
In the event that the misrepresentations amounted to “misleading conduct” within the meaning of section 56 of the Fair Trading Act 1987 (SA) and were made (in trade or commerce) within the meaning thereof, prima facie the defendants would be eligible to seek a discretionary order pursuant to section 84 of that Act effectively for the rescission of the contract.
The defendants contend that they rescinded the contract on the following occasions:
1.in July 1995 when Mr Edmunds informed Mr Edwards that the Edmunds would not sign the Shareholders Agreement;
2.in November 1996 when Mr Edmunds informed Mr Edwards that there would be no agreement;
3.in June 1998 when Mr Edmunds sought the resignation of Messrs Edwards and Hopcroft as directors of Smoothpool;
4.in September 1999 when Mr Noolan informed Messrs Edwards and Hopcroft that they had been removed as directors of Smoothpool;
5.in September 1999 when Phillips Fox wrote to Mr Danvers stating that no agreement had been reached.

In relation to these contentions:
1.I have found that the alleged discussions between Mr Edwards and Mr Edmunds in July 1995 and November 1996 did not occur;
2.the requests that Messrs Edwards and Hopcroft resign and the removal of them as directors are not capable of constituting rescission of the contract (at most, the latter might constitute a breach and/or repudiation of the contract but not a rescission of it, and the former could not even constitute a breach);
3.the Phillips Fox letter dated 6 September 1999 denied the existence of the contract, and did not purport to rescind it for misrepresentation or otherwise.
I conclude that the Edmunds did not rescind the contract as contended by them.
In relation to relief under section 84 of the Fair Trading Act, the defendants first instituted proceedings pursuant to the Fair Trading Act by way of their amended counterclaim filed on 21 November 2011. Section 85(3)(b) of the Fair Trading Act imposes a time limitation of three years for the institution of proceedings for an order in the nature of rescission “within three years after the day on which the cause of action arose”.
If a cause of action arose under section 56 of the Fair Trading Act, it arose at the earliest in July 1995 when the parties entered into the contract and at the latest in 2001 when abalone licence W17 was transferred to Dadeeton. On any view, the cause of action arose more than three years prior to the institution of the proceedings under the Fair Trading Act. The defendants conceded this in final address.
Conclusion
The defendants’ claim that they rescinded the contract for misrepresentation and their claim for relief pursuant to section 85 of the Fair Trading Act fail.
12. Termination
The defendants contend that the contract was validly terminated as follows:
1.in July 1995 when Mr Edmunds informed Mr Edwards that the Edmunds would not sign the Shareholders Agreement;
2.in November 1996 when Mr Edmunds informed Mr Edwards that there would be no agreement;
3.in about June 1998 when Mr Edmunds sought the resignation of Messrs Edwards and Hopcroft as directors of Smoothpool;
4.in September 1999 when Mr Noolan informed Messrs Edwards and Hopcroft that they had been removed as directors of Smoothpool;
5.in September 1999 when Phillips Fox wrote to Mr Danvers stating that no agreement had been reached;
6.on 10 August 2000, pursuant to clause 8.1.3 of the Shareholders Agreement by reason of “judgment being given … in the action which results in Smoothpool and/or Edmunds not gaining reinstatement of the licence and/or compensation for lost income”.
I address these contentions as follows:
1.In relation to the alleged discussions in July 1995 and November 1996, I have found that they did not take place. Even if they had taken place, while they might have constituted a repudiation by the Edmunds of the contract, a repudiation is not a lawful termination. The defendants in closing address did not identify any grounds entitling them to terminate the contract on those occasions.
2.The requests by Mr Edmunds that Messrs Edwards and Hopcroft resign as directors did not constitute a purported termination of the contract. The removal of Messrs Edwards and Hopcroft as directors might have constituted a breach or repudiation of the contract but was not and did not purport to be a termination of the contract.
3.The letter from Phillips Fox dated 6 September 1999 did not purport to terminate the contract. It did deny the existence of the contract and comprised a repudiation, but a repudiation does not constitute a lawful termination.
4.In relation to the termination which is alleged to have occurred in August 2000, clause 8.1.3 of the Shareholders Agreement provides:
… this Agreement will terminate on the first to occur of the following: -
8.1.3 judgment being given or settlement occurring in the action which results in Smoothpool and/or Edmunds not gaining reinstatement of the licence and/or compensation for lost income.
The defendants are not entitled to rely upon that clause of the contract for the same reasons I have given in section 8 above. In any event, on the proper construction of clause 8.1.3, it addresses a situation in which the plaintiffs in the Edmunds litigation were wholly unsuccessful. That simply did not occur.
The defendants plead that the plaintiffs demanded and received from the Edmunds over the period November 1995 to November 1996 payments totalling $6,000 to each of Messrs Edwards and Hopcroft. The defendants plead that this was inconsistent with the provisions of the contract and therefore amounted to a repudiation by the plaintiffs of their obligations under the contract, which the defendants accepted and thereby terminated the contract. I have addressed above the nature and circumstances of these payments when considering the issue of the existence of a contract.
The Shareholders Agreement did provide for the Edmunds to pay to each of Messrs Edwards and Hopcroft $4,000. It follows that, at its highest, there could only be an inconsistency in respect of the last $2,000 paid to each of Messrs Edwards and Hopcroft. The evidence as to the nature of and reason for these payments is very vague, and the defendants have not discharged the onus of proof that the request for and receipt of these payments was inconsistent with the Shareholders Agreement. In any event, the conduct was not sufficient to constitute repudiation by the plaintiffs of their obligations under the contract. At no point did the Edmunds communicate to the plaintiffs that they regarded this conduct as repudiation or that they were terminating the contract on this ground or any other ground.
The defendants plead a similar contention in respect of three payments made by them to Mr Danvers between March and November 1996. I have found that these payments were made pursuant to a collateral agreement that the Edmunds would meet the legal costs incurred by each of Messrs Edwards and Hopcroft in relation to the non-party discovery application in respect of the Edwards documents. This conduct is not inconsistent with the Shareholders Agreement.
The defendants also plead that Mr Edwards’ demands for and receipt of payments for work undertaken between May and July 1998 and in November 1998 (including payments totalling $4,500 made in December 1998) was inconsistent with the provisions of the contract and therefore amounted to a repudiation by the plaintiffs of their obligations under the contract, which the defendants accepted and terminated the contract. Even if Mr Edwards’ conduct comprised a repudiation of the Shareholders Agreement (which is doubtful because it was agreed with Mr Edmunds), at no point did the Edmunds communicate to the plaintiffs that they regarded this conduct as repudiation or that they were terminating the contract on this ground or any other ground.
I conclude that the Edmunds did not at any point validly terminate the contract.
13. Time limitation
The defendants contend that the plaintiffs’ action is statute barred pursuant to section 35(a) of the Limitation of Actions Act 1936 (SA).
It is common ground that section 35(a) applies to this action. Section 35(a) of the Limitation of Actions Act provides:
The following actions namely:
(a)actions founded upon any simple contract express or implied…
shall, save as otherwise provided in this Act, be commenced within six years next after the cause of action accrued and not after.
The Action
The cause of action for a percentage of the net value of the licence did not accrue until, at the earliest, the licence was transferred from Mr Pickering to Dadeeton on 2 March 2001. The action was instituted on 20 November 2006, which is less than six years after the cause of action arose.
The damages or compensation received from Gregory Pickering Investments Pty Ltd was not received until sometime after December 2001. Again, this was less than six years prior to institution of the action.
In these circumstances, the action was not instituted out of time and is not statute barred.
To the extent that the defendants contend that a cause of action for breach of contract arose upon earlier breaches by the Edmunds of the contract, the plaintiffs are not suing for damages or any other relief in respect of any such alleged breaches, and they are therefore irrelevant for the purposes of the Limitation of Actions Act.
Claim against Dadeeton
When this action was instituted on 20 November 2006, Dadeeton was one of the original defendants. During the plaintiffs’ opening address, there was discussion concerning the basis upon which the plaintiffs claimed that Dadeeton was liable on the contract notwithstanding that it was not shown as a party in the Shareholders Agreement. The plaintiffs identified estoppel principles as giving rise to Dadeeton’s liability in contract. The defendants contended that this basis was not pleaded.
On the second day of trial, the plaintiffs applied to amend their statement of claim, inter alia, to add a new paragraph 15 which pleaded explicitly that Dadeeton was estopped from denying that it was liable as a party to the Shareholders Agreement. I granted permission to the plaintiffs to amend the statement of claim on the basis that, to preserve any limitation defence which may be available to the defendants, the amendments would only operate from the date of the amendment (17 November 2011) rather than necessarily being retrospective to the commencement of the action on 20 November 2006.
The question arises whether, in these circumstances, the claim against Dadeeton should be considered to have been instituted on 20 November 2006 or on 17 November 2011.
I consider that the claim in contract against Dadeeton was not instituted at the time of the amendment on 17 November 2011. Prior to the amendment, the plaintiffs were already suing Dadeeton on a cause of action in contract. While their statement of claim did not articulate how it was that Dadeeton was liable in contract, there was no doubt that that was the claim being made against Dadeeton.
The so called rule in Weldon v Neal is to the effect that an amendment should not be allowed which adds a new defendant or a new cause of action against an existing defendant if the amendment is made after the expiration of the relevant statutory time limit.[320]
[320] Weldon v Neal [1887] 19 QBD 394; Renowden v McMullen (1970) 123 CLR 584 at 681-613 per Owen J (Kitto and Menzies JJ agreeing); Karasaridis v Kastoria (1984) 37 SASR 345 at 349-350 per King CJ; Cliff v Quinn (1988) 54 SASR 151 at 161-162 per White J, 165 per Cox J and 166 per Perry J.
The plaintiffs in November 2011 did not add a new defendant and did not add a cause of action against Dadeeton. In these circumstances, the amendments made in November 2011 did not trigger the application of the rule in Weldon v Neal.
Rule 54(6)(b) and (c) of the Supreme Court Civil Rules 2006 largely reflects the rule in Weldon v Neal. That rule provides as follows:
(6)However, an amendment cannot be made without the Court’s permission or the consent of the other parties if the effect of the amendment is—
(a)     …
(b)     to add or substitute a cause of action that is statute barred; or
(c)     to introduce a defendant against whom a fresh action would be statute barred.
For the same reasons as in respect of the rule in Weldon v Neal, the amendments made in November 2011 did not attract r 54(6) of the Supreme Court Civil Rules 2006.
Extension of time
The plaintiffs seek, if it be necessary, an extension of time within which to institute the action pursuant to section 48(1) of the Limitation of Actions Act. They rely specifically upon section 48(3)(b)(ii) which effectively empowers the Court to extend the time limitation if it is satisfied:
(ii)that the plaintiff's failure to institute the action within the period of the limitation resulted from representations or conduct of the defendant, or a person whom the plaintiff reasonably believed to be acting on behalf of the defendant, and was reasonable in view of those representations or that conduct and any other relevant circumstances,
and that in all the circumstances of the case it is just to grant the extension of time.
The plaintiffs rely upon the Phillips Fox letter dated 29 January 2002 as comprising conduct of a person acting on behalf of the defendants which resulted in the plaintiffs’ failure to institute the action within time.
The letter dated 29 January 2002 included statements that, if Mr Edwards pursued his alleged claim, Smoothpool would make a significant counterclaim against him for wasted and irrecoverable costs incurred.
Mr Edwards gave evidence that this threat “scared the pants off me” and that it was “a relevant factor in proceedings not being instituted earlier” than 2006.[321] Mr Hopcroft gave similar evidence.[322]
[321] T234/31-235/8.
[322] T782/5-783/9.
The plaintiffs did not give evidence of any event which occurred prior to November 2006 which resulted in the institution of the action notwithstanding the threat made in January 2002. The plaintiffs, in closing address, did not identify any reason why the impact of the threat of a counterclaim changed over that period.
There is no reason to believe that the threat of a counterclaim for wasted costs would have been considered to be a serious impediment to the plaintiffs instituting proceedings for a share of the proceeds of the Edmunds litigation.
In these circumstances, I do not accept the evidence of Messrs Edwards and Hopcroft that the threat of the counterclaim was a significant factor in a decision not to institute proceedings earlier, nor that it resulted (wholly or partially) in the failure of the plaintiffs to institute proceedings earlier.
In any event, the plaintiffs’ failure to institute the action earlier was not “reasonable” in view of the conduct of the defendants in instructing Phillips Fox to threaten that counterclaim.
Accordingly, I would not be prepared to grant an extension of time if (contrary to my conclusion) the action were out of time.
14. Conclusion
The plaintiffs have failed to establish the existence of a contract entered into in June or July 1995. The action must be dismissed.
If I had concluded that a contract came into existence, the plaintiffs would be entitled to 7.5 per cent each of the net value of the licence and of the compensation received from Gregory Pickering Investments Pty Ltd (to be assessed). In particular, the various “defences” raised by the defendants fail, including:
1.that the contract was subject to a condition precedent;
2.that the contract was induced by misrepresentation and the defendants validly rescinded it;
3.that the contract was validly terminated;
4.that the action was instituted out of time.
If the action had been instituted out of time, I would not have been prepared to grant an extension of time within which to institute it.
It follows that the counterclaim should also be dismissed. Generally, the declarations sought by the defendants are premised upon there being a contract (contrary to their case and contrary to my conclusion) and in any event are premised upon the defendants succeeding on contentions in respect of which I have held that they fail. I have held that the defendants are not entitled to rescission, either in equity or pursuant to the Fair Trading Act.
The defendants also seek a declaration that there was no concluded agreement. While I have held that there was no concluded agreement, it is not necessary to make a declaration to that effect. It is sufficient that I dismiss the plaintiffs’ action and give reasons for doing so by reference to there being no concluded agreement.
I will hear the parties as to final orders.