Hooker Corporation Limited v the Commonwealth of Australia [1986] ACTSC 33 (12 May 1986)

SUPREME COURT OF THE ACT

HOOKER CORPORATION LIMITED v. THE COMMONWEALTH OF AUSTRALIA
S.C. No. 701 of 1984
Crown Lease

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Crown Lease - Clause requiring consent of Commonwealth or Minister to structural alterations - Consent of Building Controller to such alterations also required - Alleged practice that latter consent accepted by lessor as enough for both purposes - Whether practice could constitute representation - Whether lessor estopped from denying first consent had been given following consent by Building Controller.

Thompson v. Palmer [1933] HCA 61; (1933) 49 CLR 507

Grundt v. Great Boulder Pty. Gold Mines Ltd. [1937] HCA 58; (1937) 59 CLR 641.

Legione v. Hateley [1983] HCA 11; (1983) 152 CLR 406

Carpenter v. Buller (1841) 8 M & W 209; 151 ER 1013

Swan v. The North British Australasian Company (Limited) (1863) 2 H & C 175; 159 ER 73

Mercantile Bank of India, Limited v. Central Bank of India, Limited, (1938) AC 287

Wells v. Minister of Housing and Local Government (1967) 2 All ER 1041

Lever (Finance) Ltd. v. Westminster Corporation (1970) 3 All ER 496

HEARING

CANBERRA
12:5:1986

ORDER

The application for further amendment of the Statement of Claim be dismissed.

DECISION

This is a further motion made on notice dated 8 April 1986 that the plaintiff have leave to amend its statement of claim. As I said in reasons for judgement handed down on 28 February 1986 in respect of a similar motion the case the plaintiff seeks to make is discussed in Hooker Corporation Limited v. The Commonwealth of Australia (1985) 61 ACTR 37 where I dealt with an earlier interlocutory application in this matter. So far as is necessary and appropriate what I said there and what I said in the reasons handed down on 28 February 1986 may be taken as incorporated in these reasons.

2. For convenience sake I set out again the substance of the amendment proposed by the application in respect of which I gave reasons on 28 February 1986. I set out as well the amendments proposed by the application with which I am presently dealing, these being underlined, together with, as paragraphs 14 and 15, paragraphs 7 and 8 of the statement of claim originally pleaded.

"5. The plaintiff alleges and the fact is

that for many years to the knowledge of the
plaintiff since the introduction of the
Building Ordinance 1972 the Commonwealth has
by administrative usage, custom, procedure
and practice granted approval to lessees to
make structural alterations to buildings
erected on land the subject of a crown lease
granted under the City (Area) Leases
Ordinance 1936 pursuant to the terms of such
leases in the following manner:-

(a) By permitting or requiring the lessee or
his agent to submit a set of building
plans in respect of such alterations to
the Building Controller for approval at
his office situated in North Building,
Civic, such office being within an area
occupied by the defendant.

(b) By the building plans being approved by
the Building Controller such approval
being signified by the plans being
stamped in or to the following effect:-

'Building work shall be constructed
in accordance with the approved plans
the Building Manual (A.C.T.), the
notations made on the plans and any
matters specified on the building
permit. The approval of plans or the
grant of a building permit does not
affect the operation of any other law
in the Territory, nor does it
authorise the use of the land
contrary to a provision, covenant or
condition of lease. Modifications if
applicable.'

and by the stamp of approval being
signed by the Building Controller or his
deputy.

(c) By the building plans being returned to
the lessee with the said approval ()
marked thereon.

(d) By the issue of a building permit
pursuant to the Building Ordinance 1972
granting authorisation for the nominated
builder to proceed with the building
work in accordance with the approved
plans.

6. The plaintiff alleges and the fact is
that at all material times since the
introduction of the Building Ordinance 1972,
crown lessees upon return of plans duly
stamped with approvals as aforesaid and upon
the issue of a building permit have relied on
such plans and the said approvals thereon and
the issue of the said building permit as
constituting all necessary approvals,
including approval under the crown lease, to
permit the crown lessee to make structural
alterations to buildings erected on the said
land.

7. The plaintiff alleges and the fact is
that the return of the building plans
approved as aforesaid and the issue of the
said building permit has at all material
times been accepted by the Commonwealth as
meeting all requirements of the Commonwealth
under the Building Ordinance 1972 and the
crown lease for approvals to make structural
alterations to buildings erected on land.

8. Otherwise than by the usage, custom
procedure and practice set out above, the
Commonwealth has not, at any material time,
required crown lessees to make any further or
other application or request for approval to
make structural alterations to buildings
erected on land in or to the effect of the
terms of clause 1(c) of the crown lease of
that land.

8.A. The conduct, administrative usage,
custom, procedure and practice referred to in
paragraph 5 constituted a representation by
the Commonwealth, or by the Minister acting
on behalf of the Commonwealth, which was made
to Crown lessees including the plaintiff that
approval in writing of the Commonwealth, or
the Minister on behalf of the Commonwealth,
to structural alterations to buildings
erected on the land under the Crown lease was
granted if the steps referred to in paragraph
5 took place.

9. In accordance with the usage, custom,
procedure and practice referred to above, the
plaintiff on or about 13 October 1983 by its
servant or agent caused plans for structural
alterations to the building erected on Block
8 Section 35 Division of City to be lodged
for approval.

10. On or about 6 December 1983 the
defendant, by its servant or agent the
Building Controller or his deputy, gave
approval to the plans and specifications, as
lodged, by endorsing the plans to the effect
set out in paragraph 5.

11. On 11 January 1984 the defendant by its
servant or agent the Building Controller or
his deputy issued a building permit for the
building work proposed in the said plans and
specifications in the following terms:-

'. . .

The building work shall be carried out
in accordance with the approved plans,
the Building Manual A.C.T., the
notations made on the plans and subject
to the provisions of the Building
Ordinance 1972. The approval of plans
or the grant of a building permit does
not affect the operation of any other
law in the Territory nor does it
authorise the use of the land contrary
to a provision, covenant or condition of
the Crown Lease.

. . .'

12. Upon return of the plans duly endorsed as
aforesaid and the issue of the building
permit, the plaintiff, in reliance upon those
approved plans and building permit as
constituting all necessary approvals
including approval under the crown lease
commenced to make structural alterations to
the buildings on the said Block 8 Section 35
Division of City and incurred cost and
expense in so doing.

12.A In reliance upon the said
representations the Plaintiff did not seek
any further or other approval under clause
1(c) of the crown lease and acted to its
detriment in that the Plaintiff put itself at
risk of being in breach of its obligations as
lessee under the said crown lease in making
the said structural alterations to the
building without any further approval under
clause 1(c) of the said crown lease, a risk
it would not otherwise have incurred.

13. It is alleged and the fact is that such
an approval to the building plans and issue
of a building permit constituted inter alia
an approval by the defendant or the Minister
on behalf of the defendant pursuant to clause
1(c) of the said crown lease.

14. On 12 March 1984 the Assistant Secretary,
Business Leases, Department of Territories
and Local Government on behalf of the
defendant wrote to the plaintiff in the
following terms:-

"The Manager
Hooker Corporation Limited
37 Northbourne Avenue
CANBERRA 2601

Dear Sir

I refer to your company's application to
redevelop the premises situated on Block 8
Section 35 City according to the building
plans submitted on 13.10.83.

I advise that approval has been obtained to
offer your Company a fresh lease together
with the consent required by Clause 1 (C) in
the existing lease to the submitted plans.

The offer is subject to the conditions that:-

. your Company undertakes to complete all
formalities for the surrender of its
existing lease upon being required so to
do;

. payment be made of a premium of
$447,500.00.

The substituting lease will be in accordance
with the terms and conditions outlined in the
attached specimen and schedule of conditions.

The premium has been assessed at half the
value which will be added by the consent to
your redevelopment plans and includes the
widened use covenant of the new lease.

I mention that this offer accords with the
advice given by letter dated 18 May 1981 to
Manchester Investments (ACT) Pty. Limited
your predecessors in title.

I would appreciate your written acceptance of
this offer together with payment of the
premium as soon as possible to facilitate
endorsement of the building plans held by
this Office. The offer will lapse after 60
days from date of this letter.

Yours faithfully,

R.J. Murray
Assistant Secretary
Business Leases"

15. On 28 June 1984 the Assistant Secretary,
Business Leases, Department of Territories
and Local Government on behalf of the
defendant wrote to Hooker Commercial
Industrial Developments (sic) in the
following terms:-

'Hooker Commercial Industrial Developments
10th Floor,
Canberra House,
40 Marcus Clarke Street,
CANBERRA ACT 2601

Dear Sirs

BLOCK 8 SECTION 35 CITY

I refer to our letter of 3 May 1984, and to
subsequent correspondence and discussions.

Whilst it is appreciated that you are
considering the matters raised and discussed,
you are continuing to build without
permission. Take notice that if after 14
days from the date of this letter building
works continue the Commonwealth will issue a
stopwork notice under the Building Ordinance.

Yours faithfully

R.J. Murray
Assistant Secretary
Business Leases'

15.A The plaintiff alleges that the
Commonwealth is not entitled to claim any
premium for consent as claimed in paragraph
14 or at all."

3. The plaintiff seeks to claim in the proposed further amended statement of claim:-

"(1) A declaration that the defendant by
itself or by the Minister for
Territories on behalf of the defendant
has given approval to the plaintiff to
make structural alterations to the
building erected on the land in
accordance with Clause 1 (c) of the Crown
Lease.

(2) Further and in the alternative a
declaration that the defendant cannot
lawfully require the plaintiff to pay a
sum of money to the defendant as a
condition precedent to the defendant
granting approval to the plaintiff to
make structural alterations to the
building erected on the land.

(3) A declaration that the plaintiff is not
and has not at any time been in breach
of clause 1 (c) of the crown lease.

(4) Costs."

4. (It should be noted that I have set out the text of the proposed amendments as though two minor corrections which the plaintiff proposes to make had been made therein in fact.)

5. For the purpose of this application I accept as true the matters alleged in the draft further amended statement of claim to which I will hereinafter refer as the statement of claim.

6. Counsel for the defendant submitted that paragraph 13 ought to be struck out. Earlier it had been contended on behalf of the plaintiff that that paragraph pleaded an implied term in the contract between the plaintiff and the defendant evidenced by the crown lease which the plaintiff holds from the Commonwealth. I rejected that contention when delivering judgment on 28 February 1986 and no appeal from that finding has been taken.

7. Senior counsel for the plaintiff said in reply that no argument as to an implied term was being pressed on the pleadings as now proposed but, as I understood him, that what was now being pressed was the plaintiff's claim to relief based on an estoppel said to have been created by the defendant's conduct.

8. In my opinion paragraph 13 should be struck out as embarrassing. It cannot in the circumstances plead an implied term in the contract between the parties and if it is not to be pressed in that regard it serves no purpose for it does not plead any fact in support of the alleged estoppel, now the true and only basis of the plaintiff's claim.

9. Counsel for the defendant expressly disclaimed any attack upon the proposed amendment on the ground that it sought to plead a promissory estoppel as a sword and not as a shield. I take him to have meant also by necessary implication that if the alleged estoppel is capable of being regarded as an estoppel in pais rather than a promissory estoppel the same disclaimer should apply.

10. In the peculiar circumstances of this case and having regard to its history, I am prepared, although not without doubt, to deal with the statement of claim on the basis that the instant estoppel alleged may, at least as a matter of form, be pleaded in the way the plaintiff has done without objection by the defendant. That, of course, does not mean that the defendant accepts that it is properly pleaded so as to show a cause of action.

11. The plaintiff claims in effect:-

(a) that since the coming into effect of the Building
Ordinance 1972 (the Ordinance) the Commonwealth
has treated approval under it by the Building
Controller of plans for structural alterations to
a building erected on land the subject of a crown
lease and the subsequent issue of an appropriate
building permit as the consent to such a
structural alteration which the relevant lease may
require the Commonwealth or the Minister on behalf
of the Commonwealth to give; (I will refer to such
a requirement as a 1 (c) clause.)

(b) that since the coming into effect of the Ordinance
all crown lessees concerned have relied upon the
approval of such plans and the issue of such a
permit as constituting consent in writing by the
Commonwealth or the Minister on its behalf to any
such structural alterations;

(c) that since the coming into effect of the Ordinance
the Commonwealth has never required any lessee
from it to make any application for consent under
a 1(c) clause other than an application for
approval by the Building Controller under the
Ordinance of plans for the relevant structural
alteration and for the issue of the relevant
building permit;

(d) that the Commonwealth represented to all lessees
seeking approval of building alterations including
the plaintiff that a consent required under a 1(c)
clause was given if the Building Controller
approved the relevant plans and issued the
appropriate permit;

(e) that in reliance upon the alleged representation
the plaintiff sought no further consent under the
1(c) clause and acted to its detriment by putting
itself at risk of being in breach of its
obligations as lessee under the crown lease by
making structural alterations without obtaining a
specific consent under the 1(c) clause; and

(f) that the Commonwealth is estopped from alleging
that a further consent under the 1(c) clause in
its lease is necessary.

12. The critical question to be decided, as it seems to me, is whether on the facts as pleaded the representation alleged can be considered to have been made to the plaintiff. I think the same question arises whether the estoppel pleaded be estoppel in pais, as senior counsel for the plaintiff submitted, or promissory estoppel, as was suggested by counsel for the defendant. I will assume, without deciding, that what is alleged is estoppel in pais. I accept too for the purposes of this application that a sufficient detriment is alleged. It is then convenient to refer to two statements of principle made by Dixon J (as he then was) respectively in Thompson v. Palmer [1933] HCA 61; (1933) 49 CLR 507 and Grundt v. Great Boulder Pty. Gold Mines Ltd. [1937] HCA 58; (1937) 59 CLR 641. In Thompson's case he said, at p 547:-

"The object of estoppel in pais is to prevent
an unjust departure by one person from an
assumption adopted by another as the basis of
some act or omission which, unless the
assumption be adhered to, would operate to
that other's detriment. Whether a departure
by a party from the assumption should be
considered unjust and inadmissible depends on
the part taken by him in occasioning its
adoption by the other party. He may be
required to abide by the assumption because
it formed the conventional basis upon which
the parties entered into contractual or other
mutual relations, such as bailment; or
because he has exercised against the other
party rights which would exist only if the
assumption were correct, as in Yorkshire
Insurance Co. v. Craine [2003] UKHL 17; (1922) 2 AC 541;
cp. Cave v. Mills (1862) 7 H & N 913 (158
ER 740); Smith v. Baker (1873) LR 8 CP
350; Verschures Creameries Ltd. v. Hull and
Netherlands Steamship Co. (1921) 2 KB 608;
and Ambur Nair v. Kelu Nair (1933) 60 IR
266; or because knowing the mistake the other
laboured under, he refrained from correcting
him when it was his duty to do so; or because
his imprudence, where care was required of
him, was a proximate cause of the other
party's adopting and acting upon the faith of
the assumption; or because he directly made
representations upon which the other party
founded the assumption. But, in each case,
he is not bound to adhere to the assumption
unless, as a result of adopting it as the
basis of action or inaction, the other party
will have placed himself in a position of
material disadvantage if departure from the
assumption be permitted."

In Grundt's case his Honour said, at p. 676:-

"The justice of an estoppel is not
established by the fact in itself that a
state of affairs has been assumed as the
basis of action or inaction and that a
departure from the assumption would turn the
action or inaction into a detrimental change
of position. It depends also on the manner
in which the assumption has been occasioned
or induced. Before anyone can be estopped,
he must have played such a part in the
adoption of the assumption that it would be
unfair or unjust if he were left free to
ignore it. But the law does not leave such a
question of fairness or justice at large. It
defines with more or less completeness the
kinds of participation in the making or
acceptance of the assumption that will
suffice to preclude the party if the other
requirements for an estoppel are satisfied."

13. Commenting on both statements Mason and Deane JJ said in Legione v. Hateley [1983] HCA 11; (1983) 152 CLR 406 at p 431:-

" . . . the reference to an 'unjust' departure
was not seen by Dixon J as a charter for
idiosyncratic concepts of justice and
fairness."

14. In Legione v. Hateley (supra) Mason and Deane JJ said at p 430:-

"It is customary to recognize three general
classes of estoppel, namely, of record, of
writing and in pais (see, e.g., Coke's
Littleton, 352a). Estoppel in pais includes
both the common law estoppel which precludes
a person from denying an assumption which
formed the conventional basis of a
relationship between himself and another or
which he has adopted against another by the
assertion of a right based on it and estoppel
by representation which was of later
development with origins in Chancery. It is
commonly regarded as also including the
overlapping equitable doctrines of
proprietary estoppel and estoppel by
acquiescence or encouragement."

Their Honours went on to state that one may discern a common principle underlying the established emanations of estoppel in pais. They then quoted the statement of Dixon J in Thompson's Case (supra) as a classic statement of that principle.

15. In considering estoppel one is concerned therefore with "an unjust departure by one person from an assumption adopted by another". To use the words of Dixon J in Grundt's Case (supra):-

"It depends also on the manner in which the
assumption has been occasioned or induced.
Before anyone can be estopped, he must have
played such a part in the adoption of the
assumption that it would be unfair or unjust
if he were left free to ignore it."

16. Because the plaintiff in the statement of claim alleges knowledge of the circumstances there is implicit in it an allegation that the plaintiff has observed or in some fashion come to know of what is described as "the conduct, administrative usage, custom, procedure and practice". It is also implicit in the statement of claim that the plaintiff perceived that conduct, usage, custom, procedure and practice to extend to a consent required in respect of a 1(c) clause. Then, still implicit in the statement of claim, is a statement that by a process of inductive reasoning it reached the conclusion that approval by the Building Controller was a sufficient consent in respect of the 1(c) clause of the Crown Lease. It therefore did not need to seek approval on its own behalf because what had been done in respect of other lessees was sufficient for it to be able to say that in its case, notwithstanding its duty to seek the consent, the consent was granted once the approval was given by the Building Controller.

17. When those inferences are drawn from the statement of claim, as I think they must inevitably be, it seems to me that there is nothing unjust in holding that the Commonwealth has not by any relevant representation induced the plaintiff to alter its position to its detriment.

18. If one were required to hold to the contrary, strange consequences would, I think, follow. As in this case, for example, a person might observe that another had entered into identical contracts with several third parties, each contract containing a clause binding the third parties to a particular course of action. He might then observe that other so to conduct himself in relation to each contract as to make it appear that he did not intend the third parties to be bound by the terms of that clause. Acting on the belief induced by that conduct, the third parties might thereafter act to their detriment so that an estoppel in respect of that clause arose in their favour. The observer might then enter into an identical contract and act to his detriment in the same way, taking the view that he too should have the benefit of the conduct he had observed to enable him to avoid his obligations under the clause, on no basis other than his observations in relation to the earlier contracts. Could it be said that a representation in his favour had been made? Such a view is not consonant with the authorities that touch on the subject.

19. In Carpenter v. Buller (1841) 8 M & W 209; 151 ER 1013, it was held that -

"Where a distinct statement of a particular
fact is made in the recital of a bond or
other instrument under seal, and a contract
is made with reference to that recital, it is
not, as between the parties to the
instrument, and in an action upon it,
competent to the party bound to deny the
recital; and a recital in an instrument not
under seal may be such as to be conclusive to
the same extent. - But a party to an
instrument is not estopped, in an action by
another party, and founded on the deed, and
wholly collateral to it, to dispute the facts
so admitted; but evidence of the
circumstances under which such admission was
made, is receivable to shew that the
admission was inconsiderately made, and is
not entitled to weight as a proof of the fact
it is used to establish."

20. In Swan v. The North British Australasian Company (Limited) (1863) 2 H & C 175; 159 ER 73, Blackburn J (as he then was) said at p 182; 76:-

"What I consider the fallacy of my brother
Wilde's judgment is this: he lays down the
rule in general terms 'that if one has led
others into the belief of a certain state of
facts by conduct of culpable neglect
calculated to have that result, and they have
acted on that belief to their prejudice, he
shall not be heard afterwards, as against
such persons to shew that state of facts did
not exist.' This is very nearly right, but
in my opinion not quite, as he omits to
qualify it by saying that the neglect must be
in the transaction itself, and be the
proximate cause of the leading the party into
that mistake; and also, as I think, that it
must be the neglect of some duty that is
owing to the person led into that belief, or,
what comes to the same thing, to the general
public of whom the person is one, and not
merely neglect of what would be prudent in
respect of the party himself, or even of some
duty owing to third persons, with whom those
seeking to set up the estoppel are not privy;
and these distinction make in the present
case all the difference."

The passage was cited with approval by Lord Wright delivering the opinion of the Privy Council in Mercantile Bank of India, Limited v. Central Bank of India, Limited, (1938) AC 287 at p 299.

21. In Spencer Bower & Turner, The Law Relating to Estoppel by Representation, 3rd edn., it is said at p 168:-

"The estoppel, being founded on the justice
of holding the parties to a transaction to
the conventional state of affairs to which
they have agreed as its basis, extends no
further than to disputes arising out of that
transaction. There are numerous cases
depending on estoppels by deed where this has
been expressly stated, and it is conceived
that identical considerations must in
principle apply to all estoppels by
convention, whether estoppels by deed or not."

I respectfully agree.

22. In the course of his submissions, senior counsel for the plaintiff referred to Wells v. Minister of Housing and Local Government (1967) 2 All ER 1041, citing it as authority for the proposition that a person is entitled to rely on a practice notwithstanding that the previous practice did not relate to him. In my opinion, however, the case merely decides that a specific representation made to a person may be relied upon by that person where the representation is made in accordance with a practice which has been adopted by a public authority and which is not part of its public duty in respect of which it cannot be estopped. (In reaching the conclusion to which I have come I have not assumed that the Commonwealth was, in dealing with the plaintiff and other lessees, engaged in a public duty in respect of which it could not be estopped. I have treated the matter as though the Commonwealth were an ordinary contracting party.) Senior counsel for the plaintiff also referred to Lever (Finance) Ltd. v. Westminster Corporation (1970) 3 All ER 496. In that case the planning officer of the defendant authority told the plaintiff's architect that a variation to the detailed plan of development for which planning permission had been given was not material and that no further planning consent was required. In that case too there was a practice among planning authorities of allowing their officers to decide on the materiality of minor alterations of an approved plan and to make a specific representation following a specific inquiry. I think the case is distinguishable also.

23. In the reasons for judgment handed down 28 February 1986 I quoted a passage appearing at p 117 of Spencer Bower & Turner, op.cit., which said that -

". . . anyone, though not capable of raising an
estoppel against himself in favour of the
public, or a class, in its entirety, can
address a representation to such public, or
class, which, if and when, but not unless and
until, acted upon to his prejudice by any
member of such body of undesignated persons,
may operate as an estoppel against himself in
favour of that individual."

24. In support of that statement the learned authors gave examples:-

"a deed poll filed for public record -
Cropper v. Smith (1884), 26 ChD 700, at
pp 705, 713; 'holding out' in partnership
cases - Goode & Bennion v. Harrison (1821), 5
B & Ald 147, at p 157 (: 106 ER 1147 at
p 1150); a representation contained in the
text of a mortgage stating that lessees are
not to be concerned to enquire whether the
requisite mortgagee's consent has been
obtained to any lease of the mortgaged
property: held sufficient to preclude the
mortgagee from contending the lease void for
lack of consent - Lever Finance Ltd. v.
Needleman;s Trustee, . . . (1956) 1 Ch 375;
and many illustrations are to be found in the
law relating to bills of exchange, bills of
lading, and the share certificates of
companies, where the particular instrument
issued to one person is in the contemplation
of the law addressed to the entire class of
persons into whose hands it may pass - e.g.
Balkis Consolidated Co. v. Tomkinson, [1975] UKHL 1; (1983)
AC 396 (particularly at p 405 per Lord
Herschell LC); Brandt v. Liverpool Brazil &
River Plate Steam Navigation Co. Ltd. (1924)
1 KB 575, C.A, per Atkin LJ, at p 600.
See, too, the observations of Salmon LJ in
Mercantile Credits Co. Ltd. v. Hamblin (1965)
2 QB 246 at p 278 as to estoppels by
silence where there is a duty owed 'to all
the world' to speak."

25. Consideration of the statement and of the authorities cited in support of it leads to the conclusion that it may be expanded, in my respectful opinion, to say that:-

"Anyone though not capable of raising an
estoppel against himself in favour of the
public, or a class, in its entirety can
address a representation to that public or
class in a particular transaction which is of
such a nature that the representation is
intended or expected or ought to be expected
to be acted upon by a member or more than one
member of such body of undesignated and
unidentified persons so that the
representation if acted upon to his prejudice
by any such member of that body may operate
as an estoppel against the representor in
favour of that member."

26. Following my quotation of the passage just referred to I said:-

"If, therefore, such a representation as the
plaintiff seeks to plead was in fact made to
the members of the public or to a class of
which it was a member, an estoppel may have
arisen if the plaintiff acted to his
prejudice as a result of the representation."

That statement may have been misleading if taken to mean that in the circumstances pleaded a representation had been made but in view of the conclusion which I have reached that no such representation as alleged was made to the plaintiff by the defendant it may, I think, be taken as accurate.

27. In my opinion, the facts pleaded do not disclose such a representation as is required to found an estoppel. It follows that the statement of claim fails to disclose a cause of action.

28. The application is dismissed.