FARRIER-WAIMAK CASE CONTINUES

Press, Volume CIII, Issue 30469, 17 June 1964, Page 9

FARRIER-WAIMAK CASE CONTINUES

FA’.Z.P.A. -Reuter—Copyright/

LONDON, June 15. The judicial committee of the Privy Council heard further argument today in the dispute between Farrier-Waimak, Ltd., shingle merchants and contractors, of King street, Christchurch, and the Bank of New Zealand over which of two interests registered against land took priority.

Farrier-Waimak registered liens in May and June, 1961, in respect of unpaid roadmaking, sewerage and other work carried out for Hornby Development Co., the beneficial owner of blocks of 11 end 15 acres of land in the Christchurch survey district A mortgage of the 11-acre block executed by Development Company in favour of the bank, although presented for registration in January, 1961, was required to be withdrawn for alteration and was finally registered in July, 1961, "subject to the liens.” Mr Justice Henry in the

New Zealand Supreme Court held that the liens had priority over the mortgage but this decision was reversed by the Court of Appeal. Farrier-Waimak now asked the Privy Council to restore the finding of Mr Justice Henry. Mr Peter Oliver, for Far-rier-Waimak, contended that a lien duly registered pursuant to the Wages Protection and Contractors Liens Act took priority over a mortgage registered subsequently. Bank Argument Mr H. R. Gray, of the New Zealand bar, also addressed their lordships on behalf of Farrier-Waimak. He said it was argued for the bank in the Court of Appeal that a search of the certificate of title would have revealed the existence of the bank’s mortgage at any time after January 30, 1961. But in counsel’s submission an entry crossed out and marked “entered in error” , must, in the absence of any evidence as to the circumstances, be regarded as a nullity and any question of a search affecting the issue was irrelevant. The bank lodged a caveat ’ to protect its interests on June 7, 1961, but the mortgage was not registered until i July 25, 11 months after the . date of its creation, said Mr Gray. On general equitable ' principles the liens ought to • prevail. The hearing was adjourned until tomorrow.