THE PRIVY COUNCIL.

Dominion, Volume 3, Issue 771, 21 March 1910, Page 7

THE PRIVY COUNCIL.

THREE NEW ZEALAND GASES DECIDED. By Telegraph—Press Association—Oopyrieh.' (Rcc. March 20, 5 p.m.) London* March 19. In tho New Zealand cases Hamilton Gas Company versus Mayor and burgesses of the Borough of Hamilton, and Reginald Greyille and Mary J. Edwante versus Crespin Parker, the appeals wore allowed with costs; and in the case of Edward .V. Hussey versus John H. Miles leave to appeal, in forma pauperis, was refused by the Judicial Committee of the Privy' Council. LEASE OF.A SILVERSTREAM FARM.

The facts .in. the case of Reginald P. Grevillo and Mary J. Edwards v. Crespin Parker, were that Parker leased from Greville and Edwards a farm containing 231 acres at Silverstream. There waa a covenant in the lease,.which was for nine years from Maroh, 1P99, that Parker could secure a renewal of the term provided that he had given sax months' notice of his intention, and should have performed his covenants. It was provided in the lease that Parker should keep the premises and fences in good repair, insure the buildings, grub up and eradicate all sweet briar and tauhinu on the farm, and not allow gorse to grow, thereon. On the ground that Parker had hot duly performed the covenants, Greville ■ and. Edwards,. who held the land as trustees, refused to grant a renewal of the lease. Parker then brought an action against 'them for specific performance. Mr. Justice Chapman held that, upon the evidence, Parker had substantially broken tha covenant to eradicate the tauhinu, and' refused to. grant specific. performance; v From this, decision. Pajker appealed to the Court of Appeal. That Court held that Greville and Edwards had failed to comply with the conditions imposed by the first sub-section of Section 94 of tho Property Law Act, 1908...They were not, therefore, in a position to set .up that Parker had. forfeited his rights uider his agreement for a lease. With exceptions which did not apply, specific performance could not be enforced unless the remedy waa mutual. Under the law as it at present stood, Parker was therefore entitled to a decree for specific performance of the agreement for a renewed' lease; but he was. only so entitled upon inak-. rag' compensation to Greville and Edwards for any damages sustained by them by reason of his breaches of covenant. ; '.■■■

The matter was then taken by Gravillo and Edwards to the Privy Coun- ■ cil, which (the' cablegram Btates) reversed the decision of the New Zealand Court of Appeal. When the case waa before the Court of Appeal, Mr. Skerrett, K.C. (with him Mr. Johnston), appeared for Parker, and Mr. D. M. Findlay (with'hini Mr. J. L. Stout) for Greville and Edwards: ' RIGHT TO SELL UNDER A MORTCACE. The facts in the case of Edward V. " Hussey, farmer, Marton, v. John H. Miles, solicitor, Mai-ton, were that Hussey claimed the intervention -of tho Supreme Court to restrain Miles'from exercising without notice a power, of sale contained in a mortgage over, a property. in;. the ' Turakina . district. . Miles's mortgage, which was to secure ■ £1638 ss. 4d., was subject"to a mortgage to the Crown for £1500. It was expressed in. the mortgage to Miles_ that the power of sale should beexercisable immediately on default in payment •of .- any instalment of interest : without noticfe to the mortgagor. Ac- ■ cording to Hussey, he was not informed i ,b$ Miles of: a provision to • thjitj effect' in. the mortgage, wliioh ho understood' was in. the ordinary form. Payment of . the amount duo had been made, but Miles,had refused to withdraw the land from sale. unless the interest up to . April next was'first paid. ' On behalf of Miles, it .was contended that the form .. of the mortgage was similar to the original mortgage over the property. Op-' portunity was given to Hussey to read the .memorandum of . mortgage before he signed it. The overdue interest was acoepted expresslj' on the oondition that its acceptance should be without prejudice to his right to exercise his power . of sale. Mr. Jiistioe Chapman granted an injunction'with costs totalling £22 9s. 6dl aigainst Miles, who 'now!appealed.' ' Upon the case being taken to the , Court of Appeal it was held that Hussey had not established any breach of duty towards him as Miles's client. The Court was of opinion that the right to exorcise the power of Bale had accrued, and that the right' to sell was not destroyed by t-ho acceptance under the circumstances of the overdue interest. The power of sale arose, not because of any default in payment of the principal,'but' because of a default which had not been waived or condoned in payment of ■ interest. The appeal was allowed with costs on the higher scale as from a distance, and the injunction was ordered' to be discharged, and judgment entered ■ in the Court below for appellant with twelve guineas costs and .Court "fees. ■ It will now be seen that the Privy Council has' refused leave, to Hussey to appeal in forma pauperis. ■ Mr. Skerrett, K.C. (with him Mr. Cook), appeared on behalf of appellant, and. Mr.'Collins (with him_ Mr. Fitzgib- - bon) for the respondent in the Court: of Appeal.- . •

VALUE OF A GASWORKS,

The question involved in the case of Hamilton Gas Company (appellants) v. Corporation of Hamilton (respondents) is the amount payable by' respondents for the works wiich they have acquired from appellants. . When the case was before the Courts in tic' Dominion the borough contested the claim of the Ga-s Company to 10, per cent.'on the loan capital and undivided profits used in: the business." The shareholders of the Gas Company had something like £8000 invested in the. 'company by .way :. of share and premium capital, and had borrowed an debentures £5000 and put that into the works. There was a smaller amount by way of undivided profits on the amounts used in tjio business. The paying of 10 per'oent.-on other than the share capital was contested. in the Courts. of this oountry by the Hamilton Borough Council, but it did not succeed. By conceding the above point it made the price the borough was agreeable to. pay for the works' £17,000. ■ The real contest between the council and the Gas Company was to whether the borough should have the works on the above terms, or should pay a price equal to all the profit capitalised at 5 per cent.) which would put the works at a value of about £32,000. The whole case hinged on the question as to there being aay goodwill in the Hamilton gasworks,, over and above the guarantee of 10 per cent, assured to the company by ilia borough under the. Act, whether the company made profit or loss during the period since its commencement.