CACHIA v ST GEORGE BUILDING SOCIETY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ CLARKE CRIPPS JJ 26 JUNE 1992, 2 March 1993 [1993] NSWCA 46 CONTRACTS — DUTY OF CARE CONTRACTS — Offer and acceptance — building society deed of transfer of engagements offers depositors shares in exchange for their deposits pursuant to an amalgamation with another building society — discretionary power of society to allot additional shares — depositor applies for shares in excess of entitlement under offer — power not exercised — power not an offer — application even if a counter offer not accepted. Held: No contract to allot. CONTRACTS — Offer and acceptance — offer made by building society to amalgamate with another — accepted and ratified by latter's members. Held: No contract exists between offerer and member of offeree society. CONTRACTS — Terms of contract — consideration of "on the same basis" where an offer was made to members of a group "on the same basis as a prior offer" — need to construe the offer reasonably. DUTY OF CARE — Duty of care generally owed by building society directors to the building society and not to individual members thereof. ORDERS The appeal is dismissed with costs. Gleeson CJ In this matter I have had the benefit of reading in draft form the judgment of Clarke JA. I agree with the orders proposed by his Honour, and with his reasons for those orders. Clarke JA In the second half of 1988 St George Building Society and the State Building Society negotiated and completed an amalgamation of the two societies. Consequent upon this amalgamation former members of the State Building Society were offered permanent shares in the new enlarged St George Building Society. These shares were offered in the same general terms as those of a previous offer of permanent shares which had been made to members of St George Building Society in 1987 (as it was then constituted). Mr Cachia, who was a member of St George in 1987, had applied for and received permanent shares in the St George Building Society in the 1987 issue. Being also a member of the State Building Society Mr Cachia also applied for shares in the 1988 offer. On 25 October 1988 Mr Cachia wrote to St George applying for 4,300,000 shares. On 20 December 1988 Mr Cachia was advised by St George that he had been allocated 1,800 shares. The motive force behind this appeal is Mr Cachia's belief that he was, however, entitled to the full 4,300,000. The 1987 St George share issue, which was approved by the members of the society at its Annual General Meeting on 29 July 1987, was for a minimum of 50,000,000 rising to a maximum of 100,000,000 shares. Members of the society were entitled to apply for blocks of 100 permanent shares per $500 of their account balances, or part thereof, as at 31 May 1987. Applications for these shares were to be made in accordance with the conditions set out in the document which was sent to the members of St George, CLS of which stated: "5. Applications for permanent shares must be made in multiples of 100 on the application form attached to this Offer. On that application form applicants are required to nominate a sufficient sum of money in a designated Share Account 2 UNREPORTED JUDGMENTS which may be applied by the Society to meet the subscription price for the shares applied for. Such applications are subject to the limitations referred to in para3. If after allocating all shares applied for in accordance with initial entitlements, the number of additional shares applied for exceeds the maximum number to be allotted, extra permanent shares under the applications for additional shares will be issued on a prorata basis according to the applications received for these extra permanent shares". However, if the proposed minimum of 50,000,000 was not reached in the initial subscription such an eventuality was to be governed by CL17 CL7 provided: "Until the minimum subscription is reached the subscription moneys shall be frozen by the Society in the Share Account nominated by the applicants in accordance with para5 above. If the minimum subscription is not reached within one month after the making of the offers or within such longer period as the Board may determine, the Board of the Society shall have the option of cancelling the share issue and refunding all moneys. In the alternative, however, the Board may extend the time of the Offer or decide to accept subscriptions at a level less than the minimum mentioned above." As it turned out subscriptions were only received for some 35,000,000 shares. However, the Board exercised its discretion under CL7 of the offer and accepted those subscriptions. On 29 September 1988 a Deed of Transfer of Engagements was executed by the State Building Society and the St George Building Society. A condition of this Deed was that St George offer to the members of the State Building Society a share issue in substantially similar terms to that which had been offered to St George members in 1987. The share offer which was in fact annexed to the Deed was the document that had been sent to the St George members in 1987 qualified by a number of amendments which were not significant and are not presently relevant. This annexed document, as amended, was sent to former members of the State Building Society in October 1988. As with the 1987 issue the 1988 issue also failed to reach the minimum subscription level of 50,000,000 shares. As they had in 1987 the Board of St George resolved to accept the subscriptions of those members up to the level of their entitlement but this time, unlike their decision in 1987, the Board resolved not to accept applications for shares by members which were in excess of their entitlement. Mr Cachia complains of this decision. In 1987 Mr Cachia applied to St George for 13,333 shares although it was found by the trial judge that in fact the amount in his account with St George was less than $1,000 thus giving him only a entitlement to 200 shares. On 29 September, the day before the date of allotment of shares, Mr Cachia received a telephone call from the Manager of the St George Share Registry who informed him that he would be allotted 13,300 and requesting him to deposit the balance of the funds needed for the purchase of the shares into his St George account. Mr Cachia complied with this request and was duly allotted his shares. It is important to note that this was not strictly in compliance with the offer that St George had made to its members. CL5 included the condition: "On that application form applicants are required to nominate a sufficient sum of money in a designated Share Account which may be applied by the Society to meet the subscription price for the shares applied for." St George would, therefore, have been at liberty to refuse to allocate the shares to Mr Cachia beyond those 200 to URJ CACHIA v ST GEORGE BUILDING SOCIETY (Clarke JA) 3 which he was entitled on the basis that at the time of application he did not have the requisite funds in a St George share account. On 14 October 1988 St George sent to Mr Cachia a document entitled "Entitlement Notice Permanent Share Offer'. This letter set out the conditions of the 1988 share offer to members of the State Building Society. This document stated: "This notice sets out your entitlement in the terms of that offer which is for withdrawable shareholders of the State Building Society as at 22 August 1988 to apply for 100 Permanent shares per $500 of their State withdrawable share account balance or part thereof as at 30 September 1988... Should you wish to apply please return a completed application form together with a cheque for the full purchase price of shares. Alternatively provide a St George share account number with your application for the debiting of the total purchase price. Sufficient funds must be held in that account at the time of application. " As at 22 August 1988 Mr Cachia's balance with the State Building Society was such as to give him an entitlement to 1,300 shares. Due to a transcription error this in later correspondence and share allocations became 1,800 shares and was accepted as such by both parties in this litigation. At this time Mr Cachia had not yet received an application form for these shares but despite this on 25 October 1988 Mr Cachia sent a letter to St George in which he stated: "Rather than continuing to wait for the official offer I have decided to place my order for shares now under the terms of the statutory statement - proposed transfer engagements - State to St George (in particular item 5 thereof), and the conditions offered and approved by St George as recorded in the minutes; as approved by State Members on 22 August 1988 and by St George Members on 24 August 1988. I hereby place my order for 4,300,000 shares at $1.50 each Provided that this order for shares may be reduced on advice to me by St George that my holding of shares (including my present) would exceed the maximum allowed under rule 12 of the Society" Regarding finance the letter said: "T already have finance for 300,000 of the shares of the above order but I need your confirmation of acceptance of my order before I shall arrange the financing of the remainder 4,000,000 shares. In this regard will you please confirm as a matter of urgency the acceptance of my order. My State Building Society accounts are numbers 349518-2 and 793042-7. Although I would only be entitled to purchase a few hundred shares if all share entitlements of the State Members are taken up, this is an unlikely eventuality, and my order above is based on the fact that I shall become entitled to take up shares not taken up by my fellow Members of the State Building Society. In this regard I note that when in September 1987 I bought shares in St George, I took up some of the shares not taken up by my fellow Members of the St George Building Society and that the offer of shares to State Members is made 'on the same basis as was offered to Members of St George last year'." At the same time Mr Cachia sent another letter to St George requesting a loan of $6,000,000 for the purpose of buying the 4,000,000 shares beyond his entitlement. 4 UNREPORTED JUDGMENTS On 1 November 1988 Mr Cachia sent to St George his formal application using the application form for the 4,300,000 shares. This application form contained a signed declaration by Mr Cachia similar to the one he had signed in 1987 when applying for that issue of shares. In particular it stated: "T/We agree and understand that this application may not proceed should funds not be held in the nominated account equal to the Total Purchase Price nominated above from the date of this application until final allotment and that this application will not proceed if the conditions in the Society's offer are not satisfied." The trial judge, Mr Justice Cole, held: "Tn the account nominated in the share application on 1 November 1988 Mr Cachia had only $3,500. By 29 November the sum had been increased to $369058.40. There was thus no compliance with the terms of the declaration in the application form." On his application Mr Cachia had indicated that the balance of the money was "$6m loan being arranged with the Loans Department. Please see letter of the Managing Director dated 27/10/88". On 4 November 1988 and again on 15 November 1988 St George wrote to Mr Cachia informing him that his request for a loan had been declined. Mr Cachia responded on 19 November acknowledging rejection of the loan. As noted above the subscriptions for this offer did not reach the minimum of 50,000,000 shares. In consequence of this the Board of St George met on 28 November 1988 and resolved that despite this the Society would allot the shares to the members who had applied for shares to the extent to which they were entitled to them but that no further allotments above these entitlements would be made. It is convenient at this point to state what the legal effect of these communications between St George and Mr Cachia were. While the St George Building Society is a Building Society governed by the Permanent Building Society's Act 1967 its issue of shares to its members could be seen to be broadly analogous to what could be termed a rights issue of shares to shareholders in a corporation. It is, of course, to be remembered, however, that under s33(b) of this Act the actions of the Building Society are not to be regulated by the then provisions of the Companies (NSW) Code except such provisions as are applied to societies under the Permanent Building Societies Act or that related to a society's dealings with a corporation. Mr Cachia is, of course, not a corporation and therefore the Companies (NSW) Code is not strictly relevant. Mr Cachia appears to have erroneously believed otherwise. The communication by St George to Mr Cachia insofar as it set out that he was entitled to as many shares as corresponded to the balance of the moneys that he held with the Society clearly constituted an offer on the Society's part which offer Mr Cachia accepted when he returned the requisite application form. However, that part of the document which dealt with the possibility of Mr Cachia subscribing for additional shares to those to which he was entitled was not in law an offer of shares. Even if it were Mr Cachia's response to that could not be seen as an acceptance of an offer as he did not fulfil the conditions of the document which required that the moneys for those additional shares be, at the time of application, held within a nominated account of the St George Building Society. In not complying with this Mr Cachia was on any view making an offer to the Society which was a new offer. Even if the original document from St George URJ CACHIA v ST GEORGE BUILDING SOCIETY (Clarke JA) 5 could be construed as an offer Mr Cachia's reply would have to be seen in this light as a counter offer. The result, of course, being that no contract could come into existence until St George accepted Mr Cachia's offer. This it did not do. Similar reasoning to this was applied in Addinell's case (In reLeeds Banking Company) (1865) LR 1 Eq 225; and see also Jackson v Turquand (1869) LR 4 HL 305. In that case the Secretary of the Leeds Banking Company sent, under the direction of the Directors, a letter to the shareholders in which they were offered an issue of shares in the following terms: "... one share for every five shares held by you, at the sum of 30 pounds per share. As you hold () shares you are entitled to () of the new shares.... [S]ign and return me the annexed form, stating whether you are desirous of taking up the shares, and also whether, in the event of any shares remaining, you wish to have any more allotted to you. If so, please say how many." The offer of four shares was held by the court to be a "distinct offer" which was absolutely and unconditionally accepted by the shareholder in his letter in reply accepting the offer. The prospect held out in the company's letter of the availability of further shares was held by the court not to be an offer. Rather the shareholder's reply was held to be an offer as to those shares, an offer only capable of becoming a contract on the company's acceptance of that offer. Mr Cachia also argues that he has causes of action arising out of alleged contracts between St George and State and State and Mr Cachia. These alleged contracts arise out of the negotiations surrounding the transfer of engagements. It is therefore necessary to outline the relevant events in those negotiations. Prior to the amalgamation the State Building Society was a society governed by the Cooperation Act 1923 whereas the St George Building Society was a society governed by the Permanent Building Societies Act 1967. In effecting the amalgamation the State Building Society, under s69(1C) of the Cooperation Act 1923, transferred its engagements to St George. The method of effecting this amalgamation was as follows: Under s69B(1) each party to the amalgamation, unless exempted by the Registrar from so doing, was required to send to each of its members a statement which had been approved by the Registrar. This statement was to include information as to the financial position and the interest of the directors of both societies and the payments to be made to both the directors and the members of the societies in consideration of the amalgamation, and any other such matters as the Registrar might direct. A similar provision exists in s41(1) of the Permanent Building Society Act 1967. Consequent to these provisions the members of the State Building Society received a statutory statement which had been approved by the Registrar on 8 August 1988. The statutory statement, which was produced consequent to negotiations between State and St George, contained two paragraphs upon which Mr Cachia relies. These are para5 and paral 4: "5. On the transfer of Engagements withdrawable shareholders of State would become Members of St George by virtue of an unpaid special class of share and would be offered an opportunity to apply for Permanent shares on the same basis as was offered to Members of St George last year. The general conditions of the offer provided for 100 shares for each $500 or part thereof of withdrawable shares at a price of $1.50 representing $1 par value plus a 50c premium." "14. The Boards of both Societies have given careful consideration to the proposal and strongly recommend that Members approve the proposed resolutions." 6 UNREPORTED JUDGMENTS Members of the State Building Society received the statutory statement with a notice of a special general meeting on 22 August 1988. This was being convened in order to enable the directors of the Society to gain the special resolution that they needed under s69(1C) of the Cooperation Act 1923 in order to transfer the society's engagements to the St George Building Society. This resolution was passed as was a resolution setting aside the reserve funds of the Society in a special reserve in such a way as to retain those funds for the benefit of former State members for some period of time. Mr Cachia attended this meeting and voted in favour of the resolutions. Prior to this St George had applied to the Registrar for his consent pursuant to s40A(1)(b) of the Permanent Building Societies Act to allow them to fulfil the engagements of the State Building Society by resolution of the Board of St George rather than by special resolution of St George members. This consent had been granted on 8 August 1988. On 22 August 1988, the same day as the special meeting of the members of the State Building Society, the Board of St George resolved: "RESOLVED that subject to the special resolution of State Building Society withdrawable shareholder Members to transfer that Society's Engagements to St George Building Society that this Society make an offer of Permanent shares at a price of $1.50 including 50c premium to State Building Society withdrawable shareholder members as at 22 August 1988 upon the same general terms and conditions as the offer made to St George Building Society Members in October 1987..." On 25 August 1988 St George again sought the Registrar's indulgence, seeking a formal exemption from the requirements of s41(1) Permanent Building Societies Act which required the sending of a statutory statement to its members which would have been virtually identical to the one that had been sent to the members of the State Building Society. On 26 August 1988 the Registrar granted formal exemption to the need for St George to send statutory statements to its members. On 29 September 1988 a deed of transfer of engagements was executed by State and St George. CL9 of this Deed provided that St George would offer to the members of the State fixed shares in St George in the terms of the 1987 share issue which was attached to the Deed subject to certain alterations which are not presently relevant. The statutory statement was also annexed to the Deed of Transfer of Engagements. While the entire statement was annexed it was found by the trial judge that the Deed itself only referred to the statement to the extent to which it dealt with the entitlements of the Directors. On 30 September 1988 the Registrar issued a Notice of Confirmation of Transfer of Engagements pursuant to s69B(3) Cooperation Act 1923 and s41(3) Permanent Building Societies Act 1967. Mr Cachia, who appeared for himself, relied on his written submissions. These submissions run to some 185 pages. These submissions raise many disparate and broad ranging points on which Mr Cachia appeals the decision of Justice Cole but when these are filtered through the notice of appeal lodged with the court three main areas of appeal emerge. The first is based on contracts between St George and Mr Cachia. The first of these contracts has already been canvassed - the alleged contract in the share issue. Mr Cachia also alleges that there was a contract between St George and Mr Cachia on the basis that the offer that was made by St George to State Building Society was ratified by a resolution of the members of the State Building Society at the General Meeting on 22 August 1988. The fact that Mr URJ CACHIA v ST GEORGE BUILDING SOCIETY (Clarke JA) 7 Cachia attended that meeting and voted in favour of amalgamation is, Mr Cachia contends, sufficient for him to found a contract between himself and the St George Building Society. The second major area of appeal concerns the contract between the St George Building Society and the State Building Society on which the amalgamation proceeded. Mr Cachia contends that this agreement was not based on the Deed of Transfer of Engagements but rather took into account preceding negotiations, especially the Statutory Statement. Mr Cachia claims that he has a right to sue on this contract and seek its rectification. The third main area of appeal is Mr Cachia's contention that the directors of the St George Building Society and the State Building Society acted in breach of the duty of care that was owed by them to the members of the State Building Society, in particular, Mr Cachia. In relation to the first main area of appeal, the existence of contracts between St George and Mr Cachia on the basis of the share issue has already been discussed. This then leaves Mr Cachia's contention that his vote at the General Meeting of the State Building Society created a contract between himself and the St George Building Society. Mr Cachia's basic contention is that the directors of the State Building Society could not act unilaterally and that the very fact that when the offer came from St George the directors of State publicised and convened the General Meeting is evidence that they saw themselves as acting as agents for the shareholders and for each shareholder as an individual. Consequently Mr Cachia argues that the contract between St George is in reality a contract between Mr Cachia and the St George Building Society, a contract which only came into existence upon his vote. It is interesting at this point to note that Mr Cachia is in essence arguing that the directors of the State Building Society had no right to contract; that right rested entirely with the shareholders as individuals voting in the general meeting. However, the very offer that came from St George came from the directors of St George and the directors of St George were granted permission by the Registrar to completely dispense with any need to gain any authorisation from their shareholders. It would seem then, on Mr Cachia's argument, that directors can act unilaterally in absorbing other building societies but cannot so act when transferring their own society's engagements to another. However, even if this were so, for Mr Cachia's argument to succeed it must be the case that an individual shareholder voting at a general meeting can, by that action, contract with another party. In fact the reverse is true. If Mr Cachia is right in this case then there was created through the one offer from the directors of St George to the State Building Society millions of contracts with the individual members. It should be pointed out that these are not shareholders in the sense of the shareholders of a corporation. Mr Cachia is merely a depositor in the Building Society and thus his rights are thus different to those of a member who contributes nonwithdrawable capital to the association as does a shareholder in a corporation. It is more than reasonable to suppose that the directors of St George had no intention to create legal relations with each and every member. Further it is clear that each individual shareholder had no right to transfer the engagements of the State Building Society. Mr Cachia while he asserts that the Transfer of Engagements could not go ahead without his acceptance of an individual contract with St George does not attempt to explain, nor could he, how it is that Mr Cachia as an individual has the right to affect the transfer of the State Building Society's business and assets to the St George 8 UNREPORTED JUDGMENTS Building Society. This, of course, could only be done by the Society as a whole while a special majority of the Society's members may well in some circumstances constitute the Society Mr Cachia alone clearly does not. It is, therefore, not possible for Mr Cachia to claim that any consideration for his alleged contract actually passed from himself to St George. The true position is that s84 of the Cooperation Act and r109 of the Society confer upon the Board of Directors the authority to exercise the powers of the Society as if they had been expressly conferred upon the Board by a General Meeting of the Society. This is subject only to express provisions in the Cooperation Act and the Rules of the society. s84 and r110 deem the actions of directors acting in pursuance of resolutions passed by the Board to be actions conducted as agents of the Society. Consequently the directors have the power to act for the Society but not for individual members of the Society, they being at all times deemed to be acting as agents for the Society as a whole. What emerges from this is that it is the directors who contract on behalf of the Society are empowered by s84 and the Rules of the Society. The majority of votes in the general meeting is to be characterised not as offer or acceptances but rather more in terms of ratification of the actions of the contracting parties. There is, therefore, no contract between Mr Cachia and the St George Building Society or the directors thereof outside of the limited one under which he received his entitlement to shares and of which he does not complain. This then brings me to the second main area of Mr Cachia's appeal, namely, the true construction of the contract between the St George Building Society and the State Building Society, and whether Mr Cachia has a right to sue on that contract. It was found by the trial judge that the contract was embodied entirely within the Deed of Transfer of Engagements which was created by the two boards of directors on 29 September 1988. Mr Cachia, however, contends that the contract is to be derived not from the Deed (which he at times puzzlingly asserts is not relevant on the basis that a deed is not a contract) but rather from the antecedent negotiations. In particular he relies upon the correspondence between the boards of directors and the statutory statement in seeking to show that the contract included a term that the issue of shares to the members of the State were to be issued "on the same basis" as the 1987 share issue. Mr Cachia's submissions in this regard demonstrate very clearly the arcane nature of contract law. Whilst to a person legally trained it might seem that there was no contract at all until the Deed of Transfer of Engagements was duly signed it is clearly not so apparent to Mr Cachia. Mr Cachia falls into the trap of assuming that the correspondence between the directors and to the members of the State Building Society constitute a series of offers and acceptances all of which pile up on top of each other to create an overall contract between the parties. Mr Cachia has overlooked the fact that, although when taken out of context each one of these documents may be construed as an offer or an acceptance, when viewed in the context of what was occurring it becomes clear that neither party intended to be conclusively bound by the documents, rather they were part of an ongoing process of negotiation. The entire basis upon which these negotiations were taking place was that at the end of them a formal agreement between the parties would emerge. This would be the Deed of Transfer of Engagements and there was no intention to create any legal relations outside of this document (Masters v Cameron (1954) 91 CLR 353). As I respectfully agree with the trial judge that the Deed of Transfer of Engagements only incorporates the Statutory Statement to the extent to which it deals with the entitlements of the directors there is in this URJ CACHIA v ST GEORGE BUILDING SOCIETY (Clarke JA) 9 contract no reference to the fact that the 1988 share issue would be "on the same basis" as the 1987 share issue, or words to that effect. Thus, even assuming Mr Cachia could overcome what would seem to be the insurmountable barrier of the doctrine of privity, the terms which he alleges have been breached do not in fact appear in the final contract. Mr Cachia's third main area of appeal that the directors the State Building Society were in breach of a duty of care to him as an individual member of that building society appears also doomed to failure. It is a central tenet of company law that directors owe a duty of care to a corporation rather than to individual corporators. The same would apply within a building society context. This is borne out by s84 of the Cooperation Act and by R110 of the Society. Thus it would normally be the case that if the directors were found to be in breach of a duty of care to Mr Cachia, or as he seemed to put it at times a breach of the fiduciary duty of care, such would concern the members of the Society as a whole. It would indeed be in only special circumstances that such a breach would be found to exist in the directors' actions to one member of the Society alone. There was no evidence adduced to support such a finding. In those circumstances one could only assume that for Mr Cachia to show that that breach of care had been committed towards himself as an individual he would need to show some actions of the directors over and above their actions in relation to the other members of the society which constituted that breach of duty. However, all the evidence shows is that Mr Cachia's correspondence with the directors of the St George and State Building Societies were no greater than, and no different from, the correspondence between those directors and every member of the State Building Society, except in one regard. This was that in the 1987 share issue by the St George Building Society Mr Cachia had been allowed to subscribe for shares in breach of the conditions contained in the offer of shares. It is surely stretching the bounds of credibility to suggest that the directors of a Society who through their agents had previously indulged a single member to the extent of allowing him to subscribe for shares contrary to the terms and conditions which were imposed upon every other member of that Society should be bound in a subsequent issue of shares to again indulge the shareholder, placing him in a position more favourable than the other shareholders; and that not to do so constituted a breach of a duty of care to that shareholder, or more correctly a breach of duty of care to the Society as a whole. One has only to state the proposition to realise that if there is any duty of care involved in this case the breach occurs in the fact that the directors allowed Mr Cachia to subscribe in 1987 in breach of the conditions rather than the other way around. This then leaves outstanding one matter in the appeal. This is whether in the one contract to which Mr Cachia is a party - the contract under which he was allocated 1,800 shares - the belief engendered in Mr Cachia that he was entitled to more shares was due to representations made to him by State and/or St George Building Societies. Mr Cachia's contention is essentially that the fact that in documents such as the statutory statement the 1988 offer was expressed to be an offer "on the same basis" as the 1987 offer meant that, as far as Mr Cachia was concerned, he would be afforded exactly the same treatment as he had in 1987. Importantly, this meant that he would be entitled to the additional allocation of shares beyond that to which he was entitled; in effect, binding the directors of St George to exercise their discretion towards Mr Cachia in exactly the same way as they had in 1987. While Mr Cachia may well have believed this the principle at law is that for a finding of representation to be made it must be made in 10 UNREPORTED JUDGMENTS circumstances in which the reasonable person in the position of Mr Cachia would have believed those statements to have been a representation. With all due respect to Mr Cachia's bona fides it is just not possible to accept that a reasonable person would have believed that in negotiating the Transfer of Engagements from one society to another, and in the sending out of identical materials to every member of that society, the directors of the society were envisaging through phrases such as "on the same basis" that a representation was being made that a certain member of the Society, namely Mr Cachia, would be entitled to receive shares in exactly the same manner in which he, and he alone, had received them in 1987. For these reasons and the reasons given by Cole J I have concluded that his Honour was correct. The appeal should be dismissed with costs. Cripps JA I agree with Clarke JA. The appeal is dismissed with costs. Counsel for the Appellant:IN PERSON Counsel for the Respondent: J CAMPBELL QC and A J MEAGHER Solicitors for the Respondent: ALLEN ALLEN and HEMSLEY