Howe v Australian International Optimist Dinghy Assoc Inc

Amalgamated Investment & Property Co Ltd (In Liquidation) v Texas Commerce International Bank Ltd [1982] QB 84 Australian Crime Commission v Gray [2003] NSWCA 318 Baird Textiles Holdings Ltd v Marks & Spencer plc [2002] 1 All ER (Comm) 737 Bredel v Moore Business Systems Australia Ltd [2003] NSWCA 117 Dainford Ltd v Repon Pty Ltd NSWSC 1 February 1988 unreported Galaxidis v Galaxidis [2004] NSWCA 111 Legione v Hateley (1983) 152 CLR 406 CASES CITED : Low v Bouverie [1891] 3 Ch 82 State of New South Wales v R T & Y E Falls Investments Pty Ltd [2003] NSWCA 54 Streatfield v Winchcombe Carson Trustee Co (Canberra) Ltd [1981] 1 NSWLR 519 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 Waterman v Gerling Australia Insurance Co Pty Ltd (2005) 194 FLR 419 Woodhouse AC Israel Cocoa Ltd SA v Nigerian Produce Marketing Co Ltd [1971] 2 QB 23 Handley, Estoppel by Conduct and Election (2006) [1-010] Meagher, Gummow and Lehane, Equity: Doctrines and Remedies (4th ed, 2002) [17-065]

PARTIES : Nicholas Andrew William Howe by his tutor Andrew McDonald Howe (P) Australian International Optimist Dinghy Association Inc (D)

COUNSEL : K A Rees (P) N Obrart (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

1621/07 NICHOLAS ANDREW WILLIAM HOWE bht ANDREW McDONALD HOWE v AUSTRALIAN INTERNATIONAL OPTIMIST DINGHY ASSOCIATION INC JUDGMENT 1 HIS HONOUR: The plaintiff, a schoolboy of 14, by his father as his tutor, sues the defendant, which is an association incorporated under the Associations Incorporation Act 1987 (WA). The objects of the defendant are to encourage sail training and competition in the Optimist Dinghy class in Australia and to conduct an Australian Championship each year ("the Australian Championship"), which may be used as the basis for selection for any Australian team to contest international events. Those events include the annual World Championship ("the World Championship"). 2 The defendant in fact selected a team of five, excluding the plaintiff, to participate in the 2007 World Championship event in Sardinia in July 2007. 3 The plaintiff seeks a declaration that the appropriate selection criteria for the Australian team for the 2007 World Championship were different from those used by the defendant in the selection of that team and an injunction restraining the defendant from returning the entry form of the Australian team as already selected to the organising committee of the 2007 World Championship. The plaintiff's right to these orders is said to arise from the fact that the defendant "is estopped and precluded from denying that the selection criteria for the national team" for the 2007 World Championship are as stated by the plaintiff. 4 The defendant denies that the plaintiff has any valid cause of action entitling him to the relief claimed or any relief. Background facts 5 These facts are uncontested or easily found. 6 The Optimist dinghy is a simple sailing dinghy suitable for young sailors up to the age of 16. Competitive sailing of this type of dinghy commenced in Western Australia in the late 1980s. It has since spread east, so that there are now Optimist Dinghy Associations in several States affiliated with the defendant. 7 The constitution of the defendant is to be found in the Rules of Association ("the RA"), which are in evidence. In rule 2 "member" is defined as meaning "Affiliated State Association". The RA contain the following relevant provisions: "5(1) Membership of the Association is open to - (a) The types of membership that shall be recognised shall be determined from time to time by the Association. (b) Members will be bound by the constitution of the Australian International Optimist Dinghy Association. (c) From time to time the Association may approve Honorary membership for committee purposes. [sic] ……

6(1) The Secretary, on behalf of the Association, must comply with section 27 of the Act by keeping and maintaining - in an up to date condition a register of the members of the Association and their postal or residential addresses and, upon the request of a member of the Association, shall make the register available for the inspection of the member and the member may make a copy of or take an extract from the register but shall have no right to remove the register for that purpose. ……

10(1) Subject to sub-rule (9), the affairs of the Association will be managed exclusively by a Committee of Management consisting of - (a) a Chairperson; (b) a Vice-Chairperson; (c) a Secretary/Treasurer; and (d) a Representative from a State not already holding a position on the Committee, all of whom must be members of the Association."

The Committee of Management was usually and is hereafter referred to as "the executive committee". 8 In general terms, there have been five places each year in the Australian team for the World Championship. An agreement to this effect was recorded at the annual general meeting of 9 January 2004. Minutes of an executive committee meeting of 8 June 2005 list eight qualifications for selection of international teams. They do not include an excellence criterion. The resolution states: "Selection is subject to the discretion of the AIODA committee." 9 The five places in the Australian team for the World Championship have in the first instance been offered to the five most successful competitors at the preceding year's Australian Championship. If not all these offers are taken up, then the vacant places are offered to the next most successful competitors at the Australian Championship, or, if all the places are not taken by competitors at the Australian Championship, the places are offered to other suitable candidates. All five places were taken up for the 2004 World Championship, but in 2005, only one place was taken up, namely, by the plaintiff, and in 2006, three places were taken up. 10 The lack of enthusiasm for the 2006 places may have arisen in part from the fact that the 2006 World Championship, which was in fact held in Uruguay in January 2007, conflicted with the 2007 Australian Championship, which was held in Hobart in the same month. This conflict, which has played a large part in this case, meant that a sailor who in January 2007 attended the 2006 World Championship representing Australia would not, on the usual criteria, be eligible for selection in the Australian team for the 2007 World Championship in Sardinia. 11 On 8 November 2006 the executive committee resolved that the selection of the Australian team for the 2007 World Championship should be made in the way that had been usual, and the selection was in fact made on that basis after the Australian Championship in January 2007. Mr Bennett informed Mr Howe of the 8 November 2006 resolution by email dated 8 February 2007. Neither Mr Howe nor the plaintiff had been informed of that resolution before the receipt of that email. 12 There was a deal of argument as to who were and who were not members of the defendant and, particularly, whether or not the plaintiff was a member of the defendant. In the end, decision of this matter is really not necessary, because the plaintiff's case does not turn on whether or not the plaintiff was a member of the defendant. There is, I think, no doubt that he was a member of the affiliated NSW Association. A current membership list of the defendant was produced to the Court by Mark Stowell ("Mr Stowell"), the current Secretary of the defendant. There was great dispute about the authority of this list, since the actual computer based document was created only in February 2007. Again, nothing turns on who the members are, but Mr Stowell says that he made this list up from pre existing records, and it reflects the provisions of the RA as to membership. So far as it matters, I am of the view that the list produced by Mr Stowell should be taken as an accurate reflection of the current membership of the defendant. The plaintiff's case 13 The plaintiff's claim, based upon estoppel, is pleaded as a representational claim relying upon three representations. It is not necessary for the purposes of this judgment to classify the estoppel more precisely. The second and third representations would need to be relied on in conjunction with each other for the plaintiff's case to be made out. The three representations are respectively alleged in paragraphs 4, 5 and 6 of the further amended statement of claim ("the statement of claim"). Those paragraphs are as follows: "4 On or about 10 January 2006 the defendant made a representation to the plaintiff to the effect that there would be a sail off between the top 5 placed junior sailors from the 2007 Australian Championship and the Australian junior sailors who competed in the 2006 World Optimist Sailing Championships to determine the top placed 5 sailors who would be eligible for selection in the Australian team to compete in the 2007 World Optimist Sailing Championship. PARTICULARS The representation was oral and made by Kerry Richards the president of the defendant (as he was then) at an annual general meeting on or about 10 January 2006. The plaintiff's father, Mr Andrew Howe was present at the meeting.

5 On or about 6 November 2006 the defendant made a representation to the plaintiff to the effect that: (a) the best placed 15 sailors in the 2007 Australian Optimist Sailing Championship would be given an opportunity to join the Australian Optimist Sailing Team (the "AOST" ); and (b) the AOST would compete as a national team at the Adelaide International Regatta in March 2007 and, subject to sponsorship and fundraising levels, members of the AOST may be selected to attend the Optimist New Zealand nationals in April 2007 and the Singapore Nationals in June 2007 the [sic] top 5 placed and [sic] sailors in the AOST would be selected in the national team to compete at the 2007 World Optimist Sailing Championship. PARTICULARS The representation was made in writing and electronically. The representation was contained in a letter from the defendant dated 2 November 2006 signed by Michael Gallagher (the president of the defendant). On 6 November 2006 the representation was sent by email by Mike Gallagher to Mr Andrew Howe. During the period from on or about 6 November 2006 to 22 March 2007 the representation was displayed on the defendant's website at www.aioda.com .

6 During the period from on or about 6 November, 2006 to a date prior to 10 December, 2006 the defendant made a representation to the plaintiff to the effect that if the plaintiff competed in the 2006 Optimist World Sailing Championship the defendant would give the plaintiff a wildcard entry into the proposed training squad and as such would be eligible for selection in the national team to compete in the 2007 Optimist World Sailing Championship. PARTICULARS The representation was oral and made by Peter Bennett to Andrew Howe."

Allegations are made of reliance and detriment, and the statement of claim concludes with the following charge: "16 In the premise [sic], the plaintiff is estopped and precluded from denying that the selection criteria for the national team for the 2007 Optimist World Championships is [sic]: (a) by a sail off between the top 5 placed junior sailors from the 2007 Australian Championship and the junior sailors who competed in the 2006 Optimist World Sailing Championships to determine the top placed 5 sailors; or in the alternative (b) the top 5 placed and available sailors in the AOST as assessed on their sailing results from the regattas listed in the AIODA letter of 2 November 2006." 14 The relief claimed is complex in nature. The plaintiff seeks the restraint of the defendant from returning the entry form of the Australian team as selected to the organising committee of the 2007 World Championship; a declaration as to the correct selection criteria; and orders that the defendant make a reselection of the Australian team on one of two alternative bases in accordance with what the plaintiff says are the correct criteria. The defendant's case 15 The defendant says that it is not established that any representation was made which could found an estoppel; that there is not established any reliance on any of the representations or detriment to the plaintiff such as would perfect an estoppel claim; and that relief would be refused in the exercise of the Court's discretion. Facts relating to the first representation 16 The first representation is now alleged to have been made at the annual general meeting of the defendant held on 10 January 2006. Originally, the allegation was that the representation was made at an executive committee meeting on the same day. That allegation was contained in the particulars appended to paragraph 4 of the statement of claim, which were only amended on 8 May 2007 during the trial to allege a representation made at the annual general meeting on the same day. That the allegation related to the executive committee meeting was in the original statement of claim was no accident, since in his first affidavit the plaintiff's father, Andrew Howe ("Mr Howe"), swore on 26 February 2007 that it was at the executive committee meeting that the representation was made. Furthermore, his solicitors in their letter before action dated 14 February 2007 had alleged, obviously on Mr Howe's instructions, that it was at an executive committee meeting that the statement was made. 17 The evidence relied on at the trial was Mr Howe's evidence in his second affidavit sworn 19 April 2007. There he swore that at the annual general meeting there was discussion of the potential clash in January 2007 between the 2006 World Championship and the 2007 Australian Championship, which would preclude a participant in the 2006 World Championship from being selected for the 2007 World Championship because of his necessary absence from the 2007 Australian Championship, if the usual criteria for selection of the Australian team were applied. During the earlier part of the annual general meeting, Kerry Richards ("Mr Richards") was still the national President. It was a statement by him that was relied on by the plaintiff as the first representation. It must be viewed in its context as deposed to by Mr Howe. Mr Howe's evidence was as follows: "4 …. On or about 10 January 2006 I attended the annual general meeting of AIODA. During the meeting the following exchange took place: I said: 'AIODA has scheduled the 2007 Nationals at the same time as the 2006 Worlds. AIODA has previously selected the team to the Worlds at the National Championships. As the next Nationals and Worlds clash, those competitors sailing at the 2006 Worlds will not be eligible for the 2007 Worlds. I suggest that the date of the Nationals be changed to allow Optimist sailors to attend both events.' Kerry Richards: 'We have known of the potential clash of the 2007 Nationals with the 2006 IODA Worlds since 2005 and we should change the date to allow the sailors who wish to go to the 2006 Worlds and also do the 2007 Nationals. Although there is a loose understanding to follow the Youth Nationals this is not set in stone and the dates can be altered.' Attendee: 'As many families attend the Youth Nationals then the optimist Nationals should follow the next week.' Kerry Richards: 'The Nationals are used as a selector for the following Worlds and this will complicate matters.' Attendee: 'If there ended up being a problem with sailors from the Nationals and sailors from the Worlds then a sail off could be arranged.' Kerry Richards: 'As the Worlds and Nationals will take place at the same time, there should be a sail off between the top five placed sailors from the 2007 Nationals and those sailors who attended the 2006 Worlds to determine the team for the 2007 Worlds. This would be a sensible approach'. I recall that there was a general consensus with this statement. I said and other attendees said: 'I agree'. The meeting then moved to consideration of where the 2007 Nationals should be held as both Tasmania and Western Australia had applied to host them." 18 It can be noted at once that, as appears from the minutes, and as all witnesses are agreed, no resolution concerning this matter was passed at that meeting. The minutes were taken by Mr Howe. It should also be noted that, although there was said to be "a general consensus" with Mr Richards' statement, the number of persons who said "I agree" was not specified and there is no clear indication that there was majority endorsement of what had been said. 19 Very late in the day, after judgment was reserved, the plaintiff applied to reopen its case to tender minutes of other meetings of the defendant to show a very informal manner of proceeding in the defendant, in order to minimise the significance of the absence of a resolution from the minutes of the annual general meeting. I am of the view that this evidence would be of peripheral significance and would not affect my decision of these proceedings. By reason of this and of the lateness of the application, the application to reopen is refused. 20 It should be observed that, whereas Mr Howe records himself later in the affidavit as saying to the plaintiff that there "will be a sail off", what he himself records Mr Richards as saying is that there "should be a sail off … This would be a sensible approach." It was in relation to the statement cast in this form that the agreement recorded as having occurred at the annual general meeting was expressed. 21 The evidence of Mr Richards, who allegedly made the representation, was quite different. He put the relevant statement in more positive form: "A sail off will be held between those attending Worlds and the top 5 sailors at Nationals should it be necessary."

However, far from claiming to have made this statement himself, he deposed that he could not now recall by whom this was said. 22 However, there are in evidence earlier inconsistent statements of Mr Richards. There is an unsigned statement taken down from a telephone conversation with him, which seems to place the January 2006 conversation in an executive committee meeting. That statement included the following: "I made no statements to Howe or anyone else that a separate selection series for the 2007 Worlds would be held."

Mr Richards gave a subsequent signed statement on 6 March 2007 which contained the following: "At a committee meeting of AIODA at Qld in 2006, the conflict was discussed, but no resolution was passed by AIODA. It was a general consensus that a sail off would simplify things should it be necessary. My Role as President was then handed over to Mr Mike Gallagher, It [sic] was left to the new committee to decide whether to change the dates of Hobart or leave the same and find another solution."

It should be noted that these various statements of Mr Richards contain significant discrepancies, eg, as to whether the discussion was at an executive committee meeting or the annual general meeting, and as to whether the statement was that a sail off would be held or only that a sail off would simplify things. 23 At the January 2006 annual general meeting, Michael Gallagher ("Mr Gallagher") replaced Mr Richards as President of the defendant. He says only that there was at the meeting discussion of the clash of dates, which had been known since the 2005 annual general meeting. He added: "At the end of the discussion, there was no resolution of the issue and the discussion moved on to other topics."

He denied that there was a statement by Mr Richards that there should be a sail off to determine the team for the 2007 World Championship. 24 In cross examination, Mr Gallagher conceded that there was some discussion of the clash and that it was possible that the possibility of a sail off had been mentioned. However, his cross examination continued: "Q I suggest Mr Richards then said this: 'As the Worlds and Nationals will take place at the same time, there should be a sail off between the top five placed sailors from the 2007 Worlds and those sailors who attended the 2006 Worlds to determine the team for the 2007 Worlds. This would be a sensible approach'. Do you agree he said that? A No. Q And I suggest that others present at the meeting said 'I agree' and words to that effect? A No." 25 Peter Bennett ("Mr Bennett") attended the January 2006 annual general meeting as the NSW representative. He said: "There was no statement by Kerry Richards or any other person at the January AGM that there should be a sail off between sailors from the 2007 Nationals and the sailors who attended the 2006 Worlds to determine the team for the 2007 Worlds." 26 In cross examination, there were put to Mr Bennett various things that were alleged to have been said at the meeting. In relation to a number of them, he said that he did not recall and conceded that it was possible that some of them were said. There followed the following questions and answers: "Q I suggest someone at the meeting then said, 'If there ended up being a problem with sailors from the Nationals and sailors from the Worlds then a sail-off could be arranged,' do you agree that was said? A No, that wasn't said. Q Do you agree that it's possible that it was said and you now don't recall it? A No, I don't, I don't agree that's possible. Q I suggest Mr Richards said, 'As the Worlds and Nationals will take place at the same time there should be a sail-off between the top five placed sailors taken from the 2007 Nationals and those sailors who attended the 2006 Worlds to determine the team for the 2007 Worlds. This would be a sensible approach,' do you agree that he said that? A No, I don't. Q Is it the case that it's possible that he said it but you now don't recall it? A No, I don't agree that it's possible that he said that." Facts relating to the second representation 27 This is contained in a letter dated 2 November 2006 ("the 2 November 2006 letter") addressed to "Australian Junior Classes" concerning the formation of the Australian Optimist Sailing Team ("AOST"). It is not clear to what "Australian Junior Classes" referred, or to whom this letter was sent, although it is clear that it came to the hands of Mr Howe. It was also posted on the defendant's website at about the time it is dated. It arose from lengthy negotiations with Yachting Australia, the overall national yachting body, which was to provide coaches and some finance to the proposed sailing team. The relevant portion of the letter is as follows: "The best placed 15 sailors in this regatta [the Australian Championship in Hobart in January 2007] will be given the opportunity to join the Australian Optimist Sailing Team (AOST).

The AOST will then return to their home state to be coached under guidance from the YA High Performance Coaches at a state level. The AOST is then brought together under a national coach to compete as a national team at the Adelaide International Regatta March 07. Following this regatta and subject to sponsorship and fundraising levels members of the AOST may be selected to attend the Optimist NZ Nationals in Napier April 07, the Singapore Nationals June 07 and a team of 5 sailors may then compete at the Optimist World Championship in Sardinia, Italy July 07. There will be partial funding of the AOST members to compete in these events. Membership of the AOST will be for 12 months with selection at each Optimist Nationals." 28 It is to be observed that the only statement the 2 November 2006 letter contains as to the selection of the Australian team for the World Championship is cast in the vague words "and a team of 5 sailors may then compete at the Optimist World Championship in Sardinia, Italy, July 07." Furthermore, as the AOST is to be selected from Hobart competitors, it would not solve the plaintiff's problem arising from the clash of the World and Australian Championships. 29 Mr Howe deposed that he received the 2 November 2006 letter under cover of an email dated 6 November 2006. He said of the letter, again in terms rather firmer than the letter itself, that "it stated that the team for the 2007 Worlds would be selected from this 15". 30 There is a deal of uncertainty as to when the plaintiff saw the 2 November 2006 letter and when and to what degree he read it. Facts relating to the third representation 31 Mr Howe in his evidence passed quickly from the second representation to the third representation. He said that, after reading the 2 November 2006 letter, he contacted Mr Bennett and discussed the lack of provision for attendees at the 2006 World Championship to qualify for the AOST. He continued: "Peter Bennett said words to the effect that Nicholas would have a wildcard entry into the AOST and as such would be eligible to become one of the five sailors able to attend the 2007 Worlds."

He amplified his account of this conversation in his second affidavit, but his account of the representation was in substance the same. He deposed that he repeated the effect of this conversation to the plaintiff. 32 Mr Bennett in his affidavit said: "15 The conversation referred to in paragraph 10 of the Second Howe Affidavit did not take place. I did not say any of the words attributed to me in that paragraph. Mr Howe did not say any of the words in that paragraph to me. I had no authority to offer places or wildcard entries into the AOST. At that time I was only the New South Wales representative. AOST being an Australian team is governed by the decisions of the national body, AIODA. I was not on the executive of AIODA until 11 January 2007. I am aware however that Nicholas Howe in fact became a member of AOST in about late February 2007."

He said that the first time he ever heard mention of a wild card as a possible basis for the plaintiff's inclusion in AOST was when he received an email on 22 December 2006. 33 There is no doubt that the plaintiff in fact in late February 2007 received and accepted a wild card invitation to join AOST. However, the defendant had, before that time, proceeded to select the 2007 World Championship team on the usual basis of places at the 2007 Australian Championship. Facts as to reliance, detriment and discretionary considerations 34 The plaintiff says that he went to Uruguay in reliance on his father's version of what Mr Richards said at the January 2006 annual general meeting and would not have gone if he believed he would be precluded from preselection for the 2007 World Championship team. It has already been observed that his father's repetition of what Mr Richards had said did not accord with Mr Howe's own evidence as to what Mr Richards said at the meeting. 35 Mr Howe had committed to bookings for Uruguay in June 2006. On 14 June 2006 Mr Howe made a payment to AIODA by way of contribution to the plaintiff's registration fees for the 2006 World Championship. This was before the second representation and the third representation. 36 The defendant, on the issue of detriment, draws attention to the fact that, on the plaintiff's previous performance, it is dubious whether he would be selected for the 2007 World Championship. Therefore, by going to Uruguay, he ensured his participation in one World Championship, whereas, had he gone instead to the 2007 Australian Championship, the result may well have been that he participated in neither World Championship. 37 The defendant also draws attention to the fact that the defendant is now bound to the sailors selected to participate in the 2007 World Championship to submit their entry and that their entitlement to participate might be disturbed by a reselection process. It would seem that they have already made plans and paid moneys towards their participation. Witness credit 38 The plaintiff, his father, Mr Richards, Mr Gallagher, Mr Bennett and Mr Stowell all gave oral evidence. I did not form the impression that any of them was attempting to deceive the Court rather than to give his best recollection from time to time of the relevant events. 39 I shall comment further on the credit of two of these witnesses. Mr Howe's credit must be damaged by the fact that he initially recalled the committee meeting rather than the annual general meeting as the occasion of the first representation in January 2006. Another mistake in his evidence which also detracts from his credit is that he deposed to attendance at a July 2006 committee meeting, which he was subsequently compelled to recant in light of the minutes of that meeting recording him not as present but as an apology. His recollection must be approached with caution, bearing in mind his evident personal and financial commitment to this litigation. 40 Mr Bennett I found an impressive witness. He answered questions after careful consideration. He appeared prepared to concede answers that were not in the defendant's interests, when that was his recollection. He distinguished carefully between matters that he could not recall but conceded were possible and matters where he put forward a clear denial of statements or events. The law 41 It is well established that a representation must be clear and unambiguous to found an estoppel. An authoritative statement of the law on this point is that of Bowen LJ in Low v Bouverie [1891] 3 Ch 82 at 106: "… an estoppel, that is to say, the language upon which the estoppel is founded, must be precise and unambiguous. That does not necessarily mean that the language must be such that it cannot possibly be open to different constructions, but that it must be such as will be reasonably understood in a particular sense by the person to whom it is addressed." 42 This matter received consideration in the High Court in Legione v Hateley (1983) 152 CLR 406. Mason and Deane JJ said at 435 - 436: "… it has long been recognized that a representation must be clear before it can found an estoppel in pais ( Low v. Bouverie [1891] 3 Ch 82 at pp. 106, 113; Newbon v. City Mutual Life Assurance Society Ltd http:/ThomsonNXT4/links/Handler.aspx?tag=d792745bc34a9e0a2831382a8098f0aa&product=cl ( 1935) 52 C.L.R. 723 at p. 738; Woodhouse A.C. Israel Cocoa Ltd. S.A. v. Nigerian Produce Marketing Co. Ltd. [1972] A.C., at pp. 755-756, 768, 771). 'Every estoppell, because it concludeth a man to alleadge the truth, must be certaine to every intent, and not to be taken by argument or inference' (Coke's Littleton, 352b). In Western Australian Insurance Co. Ltd. v. Dayton (1924) 35 C.L.R. 355 http:/ThomsonNXT4/links/Handler.aspx?tag=931bb5005e3c5c500b636023dcec6777&product=cl , at p. 375, Isaacs A.C.J., referring to the requirement that a representation must be 'unambiguous' if it is to found an estoppel in pais said:

'The word 'unambiguous' is explained by Kay L.J. in Low v. Bouverie [1891] 3 Ch., at p. 113, the word and its explanation occurring on the same page. The Lord Justice says: 'It is essential to shew that the statement was of such a nature that it would have misled any reasonable man, and that the plaintiff was in fact misled by it'. Bowen L.J. says [1891] 3 Ch., at p. 106: 'It must be such as will be reasonably understood in a particular sense by the person to whom it is addressed'. This is confirmed in George Whitechurch Ltd. v. Cavanagh [1902] A.C., at p. 145 by Lord Brampton and in Bloomenthal v. Ford [1897] A.C., at p. 166 by Lord Herschell.'"

At 436 - 437 their Honours drew attention to Lord Denning MR's useful distinction between the treatment of ambiguity in a contract and the treatment of ambiguity in an estoppel in Woodhouse AC Israel Cocoa Ltd SA v Nigerian Produce Marketing Co Ltd [1971] 2 QB 23 at 60: "... If the representation is put forward as a variation, and is fairly capable of one or other of two meanings, the judge will decide between those two meanings and say which is right. But, if it is put forward as an estoppel, the judge will not decide between the two meanings. He will reject it as an estoppel because it is not precise and unambiguous. There is good sense in this difference. When a contract is varied by correspondence, it is an agreed variation. It is the duty of the court to give effect to the agreement if it possibly can: and it does so by resolving ambiguities, no matter how difficult it may be. But, when a man is estopped, he has not agreed to anything. Quite the reverse. He is stopped from telling the truth. He should not be stopped on an ambiguity. To work an estoppel, the representation must be clear and unequivocal. That is clear from Low v. Bouverie [1891] 3 Ch. 82 and Canadian and Dominion Sugar Co. Ltd. v. Canadian National (West Indies) Steamships Ltd . [1947] A.C. 46." 43 Counsel for the plaintiff drew my attention to the application of these principles in the Court of Appeal in Bredel v Moore Business Systems Australia Ltd [2003] NSWCA 117 and State of New South Wales v R T & Y E Falls Investments Pty Ltd [2003] NSWCA 54. The principles have more recently been considered by Tobias JA (with whom Giles and Hodgson JJA agreed), although in a context rather different from the present, in Galaxidis v Galaxidis [2004] NSWCA 111. Tobias JA referred to the previous decision of the Court of Appeal in Australian Crime Commission v Gray [2003] NSWCA 318 and said at [93]: "In my opinion, the effect of this Court's decision in Gray is that even if a representation is insufficiently precise to give rise to a contract (as in the present case), that fact does not necessarily disqualify the representation from founding a promissory estoppel. Much will depend upon the circumstances in which the representation is made and the context against which it is to be considered. In its context, the representation is sufficiently clear and unambiguous if it is reasonable for the representee to have interpreted the representation in a particular way being a meaning which it is clearly capable of bearing and upon which it is reasonable for the representee to rely."

And see the instructive exposition by Brereton J in Waterman v Gerling Australia Insurance Co Pty Ltd (2005) 194 FLR 419 at [91]. 44 To illustrate the degree of clarity and lack of ambiguity required of the representation, some Judges have spoken in terms of a representation amounting to an invitation to rely on it: see Streatfield v Winchcombe Carson Trustee Co (Canberra) Ltd [1981] 1 NSWLR 519 per Wootten J at 522 and the decision of Bryson J in Dainford Ltd v Repon Pty Ltd NSWSC 1 February 1988 unreported. Conclusions 45 My conclusion is that neither the first representation, the second representation nor the third representation as alleged in the statement of claim is established as having been made. 46 I am not prepared to find that Mr Richards made the statement at the January 2006 annual general meeting which Mr Howe deposed was made by Mr Richards. As can be seen from [16] to [18] and [20] to [26] above, the evidence concerning this simple fact, short in compass as it is, is wide ranging, diverse and conflicting. I do not doubt that there was some discussion at that annual general meeting concerning the potential conflict between the 2006 World Championship and the 2007 Australian Championship. I say "potential", because the place and dates of the 2007 Australian Championship were not then fixed. Mr Richards does not concede that he made the statement he is alleged to have made. Mr Howe's own evidence as to the occasion on which the statement was made was conflicting. Witnesses at least as reliable as Mr Howe denied that Mr Richards made the statement on the occasion on which he is alleged to have made it. I decline to find that Mr Richards made the statement as alleged by Mr Howe. 47 Even if the statement were made in that form, it would not amount to a representation as alleged in paragraph 4 of the statement of claim, namely, a representation that there would be a sail off between the top 5 placed junior sailors from the 2007 Australian Championship and the Australian junior sailors who competed in the 2006 World Championship to determine the top placed 5 sailors who would be eligible for selection in the Australian team. 48 The lack of certainty in the terms of the statement as deposed to by Mr Howe; the fact that it was not then certain that the clash would occur at all; and the fact that all involved well knew that the ultimate discretion in making the selection was vested in the executive committee (to which the management of the affairs of the defendant was committed by the RA in the same way as it is generally committed to the board of directors of a company), means that the statement should not be interpreted as a firm representation as to the way in which the defendant would act, so that it would be unconscionable if the defendant acted otherwise: see State of New South Wales v R T & Y E Falls Investments Pty Ltd supra at [17]. 49 So far as the second representation is concerned, again the terms of the 2 November 2006 letter which are relied on do not rise to the representation as alleged in the statement of claim. In paragraph 5 of the statement of claim, the representation was alleged to be that the five top placed sailors in the AOST would be selected in the team to compete at the 2007 World Championship. The words of the letter are the equivocal words "and a team of 5 sailors may then compete at the Optimist World Championship in Sardinia, Italy July 07." I find that the representation as alleged was not made. Again, even if it were, bearing in mind that the letter dealt with the agreement with Yachting Australia to form the AOST, which had purposes other than the selection of the international team, and the knowledge of the complete discretion in the matter of the executive committee of the defendant, the representation should not be taken as one that could be relied on as founding an estoppel. 50 I have already observed that, in any event, the plaintiff could not be entitled to relief upon the establishment of the second representation alone, unless the third representation were also established. In relation to this, Mr Howe asserts the statement made to him by Mr Bennett and Mr Bennett denies it. Upon this direct conflict between Mr Howe and Mr Bennett, I prefer the evidence of Mr Bennett. I have already recorded my respective views upon their credit. Furthermore, in my view the inherent probabilities favour the evidence of Mr Bennett. He was at the time President of the NSW affiliated association, but in relation to the defendant he was, at most, one non office holding member of its executive committee. He says that it was his belief that he was not a member of the executive committee until 11 January 2007. Whether he was an executive committee member in late 2006 or not, it seems to me unlikely that he would have taken it on himself to make a statement purporting to bind the defendant. The submission that membership of the executive committee would have conferred on him power to bind the defendant I reject. I find that the third representation was not made. 51 The result of the findings in [46], [49] and [50] alone is that the plaintiff's claim cannot succeed. 52 It is not necessary for me to deal with the issues of reliance or detriment or discretionary considerations. I say only that the plaintiff's claim faces considerable difficulties in those areas as well. 53 There is an interesting and unresolved area of law that would become material if the plaintiff's claim were otherwise established. This is the question of whether an estoppel by representation can found a cause of action based upon the representation alone, rather than being relied on to assist the establishment of a cause of action arising from other circumstances. Thus, in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, the plaintiffs succeeded upon a cause of action based upon a contract which had in fact not been entered into, but the existence of which the defendant was precluded by the estoppel from denying. In Handley, Estoppel by Conduct and Election (2006), the learned author seems inclined to the view that the representation alone cannot be the source of legal obligation: see [1-010]. Reliance is placed on what was said by Brandon LJ in Amalgamated Investment & Property Co Ltd (In Liquidation) v Texas Commerce International Bank Ltd [1982] QB 84 at 131 - 132. It would seem that this view continues to be the accepted view in England: see Baird Textiles Holdings Ltd v Marks & Spencer plc [2002] 1 All ER (Comm) 737 per Mance LJ at [87] - [91]. The learned authors of Meagher, Gummow and Lehane, Equity: Doctrines and Remedies (4th ed, 2002) at [17-065] appear to endorse the opposite view, namely that in appropriate circumstances the representation itself can be enforced, although with some reservation. This interesting and important question does not arise in this case. 54 The result is that the plaintiff's claim must be dismissed.

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