Scottish Court of Session Decisions

In this action the pursuers aver that in about July 1996 they and the defenders decided that they would jointly undertake a commercial property development at land owned by the defenders and situated at Scott Lithgow Yard, Port Glasgow ("the Yard"). The defenders subsequently sold the Yard to a third party and the contemplated development did not proceed. In these circumstances the pursuers conclude for declarator, first, that they and the defenders were in partnership for the commercial development of the Yard, and secondly that the Yard was an asset of that partnership. Their third conclusion is (a) for count, reckoning and payment for the defenders' intromissions with the Yard, the sum claimed failing an accounting being £750,000, and (b) for payment of a further £750,000 in respect of the defenders' failure to obtain the best price reasonably obtainable on their sale of the Yard. Their fourth conclusion is for damages for breach of contract in the sum of £2,922,766.

The defenders plead that the pursuers' averments are irrelevant. The case was appointed to debate in respect of that plea. For the purpose of the debate parties were agreed that certain productions were what they bore to be, and might be referred to in the course of the debate. In the event, the productions which were referred to in the course of counsel's submissions were Nos. 6/1, 6/117, 6/118, 7/1 and 7/6 of process.

As the debate developed, the crucial question came to be whether the pursuers had made relevant averments in support of the proposition that the Yard came to be an asset of the partnership (or rather joint venture) which they alleged subsisted between them and the defenders. Although the defenders do not accept that there was a joint venture, Mr Currie, who appeared for the defenders, did not attack the relevancy of the averments in which the pursuers contend that there was one. He concentrated on an attack on the relevancy of the averments in support of the second conclusion, i.e. for declarator that the Yard was partnership property. Since the third conclusion is for an accounting in respect of the defenders' intromissions with the Yard, it too, like the second conclusion, is dependent on the relevancy of the averment that the Yard was partnership property. Mr Currie initially addressed separate arguments against the relevancy of the averments in support of the claim for damages expressed in the fourth conclusion, proceeding on the hypothesis that the averment of breach of contract made in the penultimate sentence of article 13 of the condescendence was intended to be independent of the proposition that the Yard was partnership property. Mr Martin, for the pursuers, however, accepted that there were no separate averments of breach of contract, apart from the contention that since the Yard was partnership property its sale by the defenders to a third party was in breach of the partnership agreement. In the result, therefore, the second, third and fourth conclusions all depend on the relevancy of the averments in support of the proposition that the Yard was partnership property. If that proposition is not supported by relevant averments, those three conclusions will fall to be dismissed. If that occurs, the first conclusion will stand alone as a bare declarator from which no practical consequences follow. Mr Currie therefore submitted that if the second, third and fourth conclusions are to be dismissed, so too should be the first conclusion.

The starting point of the narrative set out by the pursuers in their pleadings is the averment that in 1996 the defenders were owners of the Yard. As I have already mentioned, they go on to aver that in about July 1996 the parties decided that they would jointly undertake a commercial property development at the Yard. The development was intended to provide food and non-food retail units, and it was possible that hotel and residential accommodation might be included. It is also averred that the parties decided that they would attempt to acquire adjacent land at East Glen Yard belonging to Renfrewshire Enterprise. In articles 3 and 4 of the condescendence averments are made about the instruction by the parties of planning consultants to prepare a planning application and undertake related work, as well as of traffic consultants, a firm to carry out a retail impact assessment and quantity surveyors to estimate development costs.

In article 5 it is averred that:

There follows a summary of some of the terms of the heads of terms, and averments about the subsequent adjustment of a draft development agreement, some of the terms of which were at variance with the original heads of terms. The pursuers then aver that by the time the defenders sold the Yard to a third party (in about April 1998) there were no outstanding issues between the parties (as to the terms of the development agreement). In articles 6 to 11 of the condescendence there follow averments about work undertaken in pursuance of the proposed development. In article 11 it is averred that:

In article 12 of the condescendence the pursuers aver:

In article 13 the pursuers aver that in about April 1998 the defenders disposed of the Yard to a third party, Stamford, for £1.5 million, and that they did not give notice to the pursuers of any intention on their part to determine the partnership prior to the sale taking place. They aver that as a result of the sale of the Yard to Stamford it is no longer possible for the parties jointly to develop the Yard, and that the sale has thus frustrated the objectives of the partnership. It is contended that in these circumstances the defenders are obliged to account to the pursuers in respect of the profit which they made on the sale of the yard, and further, on the basis that sale at a price less than the best that could reasonably be obtained constituted breach of a fiduciary duty owed by the defenders to the pursuers, to account for an equal share of the difference between the price actually obtained from Stamford and the best price that could reasonably have been obtained. The sale to Stamford is also characterised as a breach of the partnership agreement, and a claim for damages allegedly suffered by the pursuers as a result of that breach is formulated in article 14.

The heads of terms, which are incorporated into the pursuers' pleadings, are produced as No. 6/1 of process. The document is dated 23 October 1996, and headed "DEVELOPMENT AGREEMENT BETWEEN STANNIFER DEVELOPMENTS LIMITED AND CLYDEPORT PROPERTIES LIMITED TO DEVELOP JOINTLY THE FORMER SCOTT LITHGOW YARD AND ASSOCIATED LAND AT PORT GLASGOW". There then follows a section headed "General" which narrates that it is the intention of both parties to act jointly to obtain a suitable planning consent "to realise full development value" of the Yard, and that the parties "will act jointly to negotiate purchase/development agreements for neighbouring sites", specifically the East Glen Yard to "facilitate the economic and commercial development of the site as a whole". The main functions of the "Company" (which expression is later explained as meaning "Stannifer/Clydeport") to "facilitate the above" are then set out as being: (1) to agree a master plan for the area with the Local Authority, Enterprise Companies etc; (2) upon receipt of planning consent, to assess and thereafter agree the extent of viable commercial development on site; (3) to assess the land value for the development and thereafter "proceed in constructing same"; and (4) following practical completion, to assess any "overage profit". The next section is headed "Planning Procurement", and sets out that the parties will jointly appoint planning consultants at an agreed fee to negotiate with the planning authority. The document continues:

There then follows a definition of "satisfactory consent" by reference to a land value of £50,000 per acre for the retail/leisure element of the scheme. The next section, headed "Receipt of Planning", provides that the "Company" will assess the extent of viable commercial development which can be undertaken bearing in mind the planning consent granted. Reference is again made to the threshold value of £50,000 per acre. Outline machinery is set out for determining the development costs. There is then a section headed "Assess Land Value", which provides for agreement on the extent of viable development and determination of development costs all within six months of planning consent being granted. For the purpose of "this appraisal" a deemed minimum developer's return of 15% is to be used. The section then continues:

It is then provided that the pursuers will be in day-to-day control of the development and will keep the defenders informed. The defenders are to approve the appraisal acting reasonably, and if the profit exceeds the land value at the reconciliation date (which does not appear to be defined), the pursuers will receive "an initial payment equal but no greater than the land payment". Thereafter any additional value will be treated in accordance with the overage arrangements stated in the final section. That section, headed "Overage Arrangements", provides that in the event that the development remains unsold a year after practical completion, the value of the development is to be struck, the development costs are to be vouched, and any "extra over profit" is to be calculated. The pursuers will receive "the first 15% developer's return", and any residual sum will be split 50/50 between the parties.

Mr Currie's primary submission was that the pursuers had made no relevant averments in support of the proposition that the Yard, which at the outset was the property of the defenders, became the property of a partnership or joint venture between the pursuers and the defenders. In making that submission Mr Currie proceeded on the hypothesis that the pursuers had relevantly averred that in the circumstances there was a partnership or joint venture for the development of the Yard and associated land, although the defenders' position, which they did not depart from, was that there was no such partnership or joint venture. The defenders' position on averment is expressed as follows in answer 5:

For the purposes of the debate, however, Mr Currie's submissions were directed against the relevancy of the averments that the Yard became partnership property.

Mr Currie articulated three propositions on which his submission depended. These were:

1. that there can be a partnership or joint venture dealing with a piece of heritable property belonging to one of the partners without that partner contributing the property to the stock of the partnership;
2. that there are in the summons no relevant averments that the defenders expressly or impliedly contributed the Yard to the joint venture so as to make it partnership property; and
3. that on the contrary the proposed agreement between the parties made specific provisions, in outline in the heads of terms and in detail in the revised draft development agreement, for the treatment of ownership of the Yard which were wholly inconsistent with the pursuers' contention that it became partnership property.

He accepted the pursuers' submission that there was no need for a formal conveyance from the partner to the firm to convert property belonging to the partner into partnership property. The fallacy in the pursuers' position, he submitted, was encapsulated in the following sentence in article 12 of the condescendence:

That, he submitted, was in law an erroneous proposition.

The pursuers' pleadings, in any event, he submitted, contained averments which were inconsistent with their position that the Yard became partnership property. He pointed in particular to the sentence in article 5 of the condescendence:

and the sentence in article 14 in the averments of loss which the pursuers claim to have suffered through breach of contract on the part of the defenders:

Acquisition of the Yard by the pursuers in return for a site price payable to the defenders was inconsistent with the Yard having already become partnership property.

Section 20(1) of the Partnership Act 1890 provides as follows:

The question which arose in the present case, Mr Currie submitted, was whether there were relevant averments that the Yard had been "brought into the partnership stock". That, he submitted, depended on the intention of the partners (Miller on Partnership, second edition, page 389). He referred also to the following passage in Miller at page 393:

The authority cited in Miller for the proposition that the feudal title would yield to evidence that the property was the subject of the partnership, namely Keith v Penn (1840) 2 D 633, did not truly bear out that the mere fact that the property was in some sense the subject of the partnership was sufficient to make it partnership property. The test, Mr Currie submitted, was the intention of the parties. A formal disposition by the partner to whom the property originally belonged in favour of the partnership was not necessary to make the property partnership property, but it was necessary to show his agreement to its being brought into the partnership estate (Munro v Stein 1961 SC 362, per Lord Wheatley at 368).

In the pursuers' pleadings there was, Mr Currie submitted, nothing to indicate that the defenders had agreed that the Yard should become partnership property. The only averment was the legally unsound one that the Yard was an asset of the partnership because it was the principal subject of the work to be undertaken by the parties. But the matter went further than that. The heads of terms showed that it was not the intention of the pursuers and the defenders that the Yard should be brought into the partnership stock at the outset, but rather that if the development was to proceed the Yard would at a future stage be purchased by the pursuers from the defenders. Although the heads of terms contemplated that in the event that planning permission was refused and the parties did not agree to proceed with an appeal the partnership would be at an end, there was no provision as to what was to become of the Yard in that event. That pointed to the conclusion that the Yard had not become partnership property. So too did the absence of any provision for what was to happen if it was decided (by reference to the £50,000 per acre threshold) that the development was not commercially viable. The provision that the site price would be paid to the defenders in the event that the pursuers, within six months of receipt of planning permission, advised them that they were proceeding with the development also pointed to the understanding that the Yard remained the property of the defenders until that stage was reached. Although no formal development agreement was ever signed, the draft which was adjusted between the parties (No. 7/6 of process) contained further indications that the Yard had not become partnership property. It was entitled "Sale and Development Agreement". The preamble narrated inter alia that "Subject to the pre-conditions aftermentioned Clydeport have agreed to sell and Stannifer have agreed to purchase the RCL Subjects". Clause 1 defined the "RCL Subjects" as including "those parts of the Clydeport Site [i.e. the pursuers' land at the Yard] ... identified for retail, commercial and leisure development pursuant to the planning permission obtained in terms of Clause 4.2 hereof ...". Clause 4 set out the pre-conditions upon satisfaction of which the sale was to depend. Clause 4.1.4 identified as one such condition that the pursuers are satisfied that the defenders hold a valid and marketable title to the Clydeport Site. Clause 4.7 entitled the parties to resile without liability in the event of the pre-conditions not being timeously purified or waived. There was no provision regulating what should happen to ownership of the Yard in the event of one of the parties resiling, although there was provision in Clause 7.4 for what was to happen in such an event to the East Glen Yard. Clause 8.1 provided that on the date of entry (defined in Clause 1 by reference to the purification of the pre-conditions) the pursuers would pay the Completion Price to the defenders in exchange for delivery of a disposition of inter alia the RCL Subjects. Reference was also made to other provisions of the revised draft Sale and Development Agreement, but those which I have mentioned are in my view sufficient for an understanding of the defenders' argument.

In summary, the defenders' submissions were:

1. that there was nothing in the pursuers' averments or in the documents amounting to an assertion of the requisite agreement on the part of the defenders that the Yard should become partnership property;
2. that the whole tenor of the proposed transaction was, on the contrary, that once planning permission was obtained, the Yard would be sold by the defenders to the pursuers and developed by them, with the basic price for the Yard being paid at that stage, and the defenders' share of the development profit coming later; and
3. that the pursuers' case was wholly dependent on the erroneous proposition that land which was the subject of a joint venture ipso facto became partnership property of the joint venture.

2. The Pursuers' Submissions

Although Mr Currie had not addressed any argument against the relevancy of the pursuers' averments that a joint venture between the pursuers and the defenders had come into existence, Mr Martin began by setting the scene for his submissions on the question of partnership property with certain submissions about the constitution of a joint venture. The statutory context is to be found in the Partnership Act 1890, and Mr Martin reminded me of the terms of sections 1(1), 4(2), 20(1), 24(1), 29(1) and 32(b). It was clear, he submitted, that the existence of a partnership or joint venture might be inferred from the actings of the parties. No particular formality was critical for the constitution of a partnership or joint venture. "A joint venture is simply a species of the genus partnership, differentiated by its limited purpose and duration (which necessarily affect the extent of the rights and liabilities flowing from the relationship), but in all other essential respects indistinguishable from any other partnership" (Mair v Wood 1948 SC 83, per Lord President Cooper at 88). "There is no simple or single test which can be applied in every case so as to establish or negative the existence of a partnership. All the relevant features of the parties' relationship must be examined and a view reached on the basis of all such features" (Dollar Land (Cumbernauld) Limited v CIN Properties Limited 1996 SLT 186, per Lord Coulsfield at 191J; see also at 195F). Reference was also made to Adam v Newbigging (1888) 13 App Cas 308 at 315, Munro v Stein at 367, and Jassal's Exx v Jassal's Trs 1988 SC 150.

In the present case, Mr Martin submitted, the parties' agreement to enter into a joint venture was expressed in the heads of terms, and reinforced by the other averments relating to the steps taken in pursuance of the development project. The joint venture came into existence when the agreement to embark on the project was expressed in the heads of terms. Although it was contemplated that a formal development agreement would in due course be entered into, that did not prevent the earlier constitution of the joint venture. The purpose of the joint venture was, as the heading of the heads of terms stated, "to develop jointly the former Scott Lithgow Yard and associated land at Port Glasgow". It was not a vague scheme to explore development opportunities; it was concerned specifically with the development of the Yard and certain neighbouring sites. The first paragraph of the heads of terms identified the intention of both parties as being to act jointly (i) to obtain suitable planning consent to realise full development value of the Yard, and (ii) to negotiate purchase/development agreements for neighbouring sites (including specifically the East Glen Yard) to facilitate the economic and commercial development of the site as a whole.

Against that background of the constitution and purpose of the joint venture, which he submitted was relevantly set out in the pursuers' averments and the agreed documents, Mr Martin went on to advance his submission that the pursuers had also relevantly averred that the Yard was partnership property. His submission was that, in light of the purpose of the joint venture, it could be inferred that the Yard had been brought into the stock of the joint venture. The point is stated in the pursuers' pleadings in the averment in article 12 of the condescendence that:

"The Yard, as the principal subject of the work to be undertaken by the parties, was an asset of the joint venture."

The point was repeated in a number of forms in the course of Mr Martin's argument, but remained as short and simple as that. He did not suggest that there was any averment of steps taken by the defenders to bring the Yard into the stock of the joint venture, beyond the simple fact of their joining in the venture that had as its object the development of the Yard. Without the land in the control of the joint venture, Mr Martin submitted, the joint venture was meaningless. If it was once accepted that the pursuers had made relevant averments of the constitution of the joint venture for the purpose of development of the Yard, it followed that the Yard must have been brought into the stock of the joint venture. It was inconceivable that the joint venture could exist for the purpose stated in the heads of terms without the Yard being available to it. There was no competing analysis put forward by the defenders in their pleadings to explain the legal nature of the arrangements between the parties in relation to the development of the Yard. The scheme was for the development of the Yard along with neighbouring land, and that neighbouring land was to be purchased by the joint adventurers acting jointly (see the introductory paragraph of the heads of terms). That pointed to a joint intention that the Yard too should be owned by the joint venture. The purpose of the joint venture could only be achieved if the Yard came within the ambit of the joint venture. That could only come about if the defenders contributed it to the stock of the joint venture. Precisely what return the defenders were to receive was left to be worked out in detail later. The reference in the heads of terms to "site price" was simply a way of identifying the return that the defenders were to receive for their contribution to the joint venture of their property at the Yard. At that stage control of the whole site would pass to the pursuers to enable them to proceed with the development. The present case was clearer than others in which property had been held to have become the property of a joint venture (White v McIntyre (1841) 3 D 334; Munro v Stein). The critical effect of the joint venture coming into existence was that, although title to the Yard remained with the defenders, it was thenceforth held by them in trust for the joint venture. Since the defenders denied that there was a joint venture in the terms set out in the heads of terms, the interconnected questions of whether there was a joint venture and whether the Yard was the property of the joint venture required to be the subject of proof before answer.

3. Discussion

Although the defenders dispute that the heads of terms constituted a joint venture between them and the pursuers, they do not argue that the pursuers have not made relevant averments of the existence of a joint venture. The focus of their attack on the relevancy of the pursuers' pleadings is upon the averment that the Yard became the property of the alleged joint venture. Section 20(1) of the Partnership Act 1890 contemplates two ways in which property may become partnership property, namely (i) by being "brought into the partnership stock" or (ii) by being "acquired ... on account of the firm, or for the purposes or in the course of the partnership business". In the present case, it seems to me, the question is whether it is relevantly averred that the Yard was brought into the stock of the joint venture between the pursuers and the defenders. I accept that a partner may bring property of his into the partnership stock without formally conveying it to the partnership (Munro v Stein), and the fact that title to the Yard remained with the defenders is therefore no obstacle to the pursuers' contention that the Yard became partnership property. In my opinion, it is correct, as suggested in Miller on Partnership at 389, that in a question between the partners or joint adventurers whether the property of one has been brought into the partnership stock must be determined by reference to the partners' intention. That intention is no doubt capable of being inferred from circumstances. In the present case, there are no averments of any active steps taken by the defenders to bring the Yard into the stock of the joint venture. The sole assertion for the pursuers is that the Yard was an asset of the joint venture because it was the principal subject of the work to be undertaken by the joint adventurers.

It seems to me that there may well be cases in which the part which the property in question plays in the activities of the partnership is such that the mere existence and purpose of the partnership is sufficient to yield the inference that the partners intended that the property should be brought into and held as part of the stock of the partnership. On the other hand, as is pointed out in Miller on Partnership at 393, the mere fact of use of the property for the purposes of the partnership is not necessarily sufficient to yield the inference that the partners intended it to form part of the stock of the partnership. It is therefore in my view necessary to examine the whole circumstances founded upon in averment to see whether they contain a basis for the inference that the parties, and in particular the defenders whose property the Yard was at the outset, intended that the Yard should from the inception of the joint venture become the property of the joint venture.

The critical averments, it seems to me, are:

1. that in about July 1996 the parties decided that they would jointly undertake a commercial property development at the Yard (article 2 of the condescendence);
2. that in September or October 1996 the parties' representatives agreed the terms on which the development would take place (article 5);
3. that the heads of terms (which are incorporated into the pursuers' pleadings) recorded the parties' agreement as to the form that the joint development would take (also article 5); and
4. that the Yard was an asset of the joint venture because it was the principal subject of the work to be undertaken by the joint adventurers (article 12).

If a relevant basis for the inference that the Yard was brought into the joint venture stock is to be found, it is to be found in those averments and in the heads of terms.

I accept that it is clear from the heads of terms that what the parties had in mind was a joint project for the development of an area of land of which the Yard formed the core. In the long term, the availability of the Yard was essential to the success of the scheme. I do not accept, however, that it follows inevitably from the constitution of a joint venture with that purpose that the Yard must from the outset have become joint venture property. It is clear, in my view, from the heads of terms that the first stage of the project was the obtaining of planning permission. If and when that was achieved, the next stage was an appraisal of the commercial viability of a development in accordance with the planning permission obtained. At that stage it was for the pursuers to advise the defenders whether they were proceeding with the development. Until that stage was reached, ownership by the partnership of the land to be developed, and of the Yard in particular, was not, it seems to me, essential. Planning permission could be obtained without ownership of the land to which the application related. The commercial appraisal, likewise, does not seem to me to require that the land to be developed be already in the ownership of the joint venture. If the Yard was not in the ownership of the joint venture during the stages of application for planning permission and commercial appraisal of the viability of the development, the pursuers were no doubt taking a commercial risk, in the sense that any money spent on making progress with the scheme might turn out to be wasted if in the end ownership of the land to be developed could not be obtained. It seems to me, however, that there were at least three ways of dealing with that situation. One, no doubt, would have been to have the joint venture acquire ownership of the Yard at the outset. Another, however, would have been for the pursuers and the defenders to enter into a contract in terms of which, although title and beneficial ownership of the Yard remained with the defenders, they came under a contractual obligation not to dispose of their ownership of the Yard. Another possibility would have been that the pursuers were content to rely on the voluntary co-operation of the defenders, without either a transfer of ownership or a formal contractual restriction upon the defenders' power of disposal of the Yard. It is also possible, it seems to me, that the pursuers simply overlooked the need to protect the future viability of the project by imposing some restriction on the defenders' freedom to dispose of the Yard. The existence of those possibilities, it seems to me, renders it impossible to affirm that it was an inevitable consequence of the constitution of the joint venture that the defenders must be taken to have agreed to bring the Yard into the stock of the joint venture from the date on which the joint venture was constituted.

The other aspect of the pursuers' averments which seems to me to be fatal to their contention that the Yard became joint venture property at the outset of the joint venture is that the heads of terms, which are incorporated into and therefore form part of those averments, clearly contemplate a different way of proceeding. The heads of terms provide for payment of a site price to the defenders at the stage (not reached by the date when the defenders disposed of the Yard to a third party) when satisfactory planning permission had been obtained, the development had been appraised as commercially viable, and the pursuers had decided to proceed with it. No doubt, if the expression "site price" were used sufficiently loosely, it might have been capable of being reconciled with a situation in which the Yard became joint venture stock at the outset of the joint venture, but when the site price became payable to the defenders it would be paid in exchange for release of the Yard from the ownership of the joint venture into the ownership of the pursuers. But such an arrangement would, in my view, have had to be set out in more detail than is to be found in the heads of terms. Moreover, one would have expected provision to be made for the Yard to be restored to the beneficial ownership of the defenders in the (foreseen) event of the project being aborted, failing which some provision for the disposal of ownership of the Yard in that event. That the intention was that the Yard should remain in the ownership of the defenders until the way was clear for the development to proceed, and should then be sold by the defenders to the pursuers, is in my view made clear by the terms of the Sale and Development Agreement adjusted between, but not executed by, the parties (No. 7/6 of process). I do not repeat reference to the various features of the Sale and Development Agreement which I have mentioned in the course of recording the defenders' submissions, but they seem to me to point quite clearly to the arrangement pending a final decision that the development should proceed being quite other than that contended for by the pursuers.

In these circumstances I am satisfied that the pursuers' averments do not contain a relevant basis for the inference that, at the time when the defenders disposed of the Yard to a third party, they held it for the joint venture as part of the stock of the joint venture.

Mr Currie advanced a separate argument in relation to the relevancy of the averments in support of the pursuers' fourth conclusion. That argument proceeded on the assumption that the case made in the penultimate sentence of article 13 of the condescendence did not depend on the assertion that the Yard was partnership property, but was founded on some other alleged contractual restriction on the defenders' freedom to dispose of the Yard. In the event, however, Mr Martin disavowed any case of that nature, and accepted that the breach of contract case was periled on the relevancy of the averment that the Yard was joint venture property. In these circumstances, the damages claim stands or falls with the second conclusion, and it is unnecessary to discuss this matter separately.

Mr Currie advanced a separate argument that, although the pursuers' averments in support of their claim for damages proceeded on the basis that but for the sale of the Yard to Stamford the development contemplated in the heads of terms would have proceeded, there were no relevant averments that the East Glen Yard, an essential element of the proposed development, would have been obtainable. The defenders' position on averment was that it was the fact that the East Glen Yard could not be acquired that led them to conclude that the development project was not viable, and therefore to feel free to sell the Yard to Stamford. I am not persuaded, however, that it is implicit in the pursuers' pleadings that acquisition of the East Glen Yard was a sine qua non of the development, so as to make averments that it would have been acquired essential to the relevancy of the pursuers' claim for damages. The heads of terms clearly make the acquisition of the East Glen Yard one of the purposes of the joint venture, but that does not seem to me to take the defenders to the point of being able to assert that it was an essential feature of the project. In any event, the pursuers aver in article 9 of the condescendence that:

That is no doubt somewhat baldly stated, but it does put in issue as a matter of fact the question whether East Glen Yard would or would not have become available. In the circumstances, I am not persuaded that this aspect of Mr Currie's submissions was well founded. In the event, however, it does not arise.

Since I have held that the pursuers have not made relevant averments in support of the proposition that the Yard was partnership property at the time when it was sold to Stamford, it follows that they have not made relevant averments in support of the declarator sought in the second conclusion. Since the third conclusion, in both its parts, also depends on that same proposition, it follows that it too is not supported by relevant averments. As I have indicated, it was a matter of concession that the fourth conclusion was also periled on the same proposition. Thus it is likewise not supported by relevant averments. The second, third and fourth conclusions therefore fall to be dismissed. That leaves the first conclusion, for declarator of the existence of the joint venture, standing alone as a bare declarator from which no practical consequences would follow. I take the view that in those circumstances that conclusion should also be dismissed.

I shall accordingly sustain the defenders' first plea-in-law and dismiss the action.