HARBOUR LEASES.

Dominion, Volume 3, Issue 811, 7 May 1910, Page 14

HARBOUR LEASES.

STO CO TO THE PRIVY COUNCIL. - GISBORNE CASE. The Court of Appeal sat yesterday morning, there being on ithe bench [the Chief Justice (Sir Robert; Stout), •Mr. Justice Cooper, and Mr. Justice Chapman. . , A was brought that leave should be granted fhat the case of the Gisborne Harbour Board v. Frank Brayton Barker and Percival Barker, sheep farmers, of Gisborne, might be 'taken before the Privy Council. , Mr. Myers appeared for the Hiribour Board, and Mr. C. P. Skerrett, (fLC., for Barker Brothers. i Tbe appeal, heard on April 15 and Redded on April 22, had been brought iby the Harbour. Board' in respect of portion of a judgment delivered in tie Supreme Court at Gisborne by Mr. TJustice Sim, on November 24 last. The matter had come before Mr. Justice (Sim; in the fornrof an originating sumimoris, _ the Harbour Board appearing as plaintiffs. The board on that occasion asked the Court tp interpret two leases, which had been granted by the Harbour Board, and had become vested in Barker Brothers. The appeal was _ concerned with! only. one point, as fol'lows:—'Under both leases, Barker Brothers had a right of renewal for a further term of 21 years. The rent for (the further term, if any, was to be fixed by arbitrators, acting in accordance with the provisions of the Arbi-

juration Act. The • leases made provijsion' thatßarker Brothers, if! they elected to' take a renewal, should not i Ibe entitled at the end of the-further, (term, to be paid any compensation for (improvements effected by them. , If, (however, they chose not to renew, they Iwere to be paid for improvements up ito the value of 10s. per acre. One of .-.' me questions submitted to the Court in the originating summons had been: "On what basis is the rent of the remewed leas© to be fixed? Is' it to ion the improved or unimproved value of ithe land?" Mr. Justice' Sim had dettermined that the arbitrators ought -to jaetenniae what would be a fair rent, without taking into consideration any «f the. improvements made by the Sessees, and that it was open to.them tf they thought fit, to adopt the method specified in Section 161 , of the iand Act, 1885, namely, to fix the rent « five per cent, on the value of the Jand less the value of all improvements >ffected by the lessees.' The appeal was itwas from this decision *nat the Harbour Board desired to appeal to the Higher Court. I Mr. # Myers offered no objection to the 'i»£s? F g* ant ed leave, security of 5.500 to be entered into within three Biontha, and the record to be prepared' tad dispatched within four months; tnal leave to be.granted.by .the Court srhen security has been lodged..,

TAXINC OF LARCE ESTATES. AN 7 IMPORTANT JUDGMENT. The Chief Justice decided yesterday the case of. Henry.. Gaisford, sheep,farmer, of. Oririgi, near Dannevirke, v. miP° mmi3sionor of Ta «s, Wellington, i -The proceedings came in the form of a special case, and argument was Iheard.on May 3, Mr. C. P. Skerrett, (K.C.,.with him Mr. H. H. Ostler, appearing for Gaisford, and Mr. J. W,: Scflmond • (Solicitor-General) . for the Commissioner of Taxes'.'. ;'.- . Vu? 1 * judgment -yesterday,■:■ the Chief Justice remarked that this - t was & special case .dted'.inVan'.Vctibii'by. .Gaisford for the recovery ,of-graduated Sand tax for the yeafs'l9o7-08 and 190809, paid by him under protest. Shortly jput, the questions raised in'the case might be condensed into one: Whether Waisford was 'rightly assessed for graduated land tax on' ah estate' called Mount Herbert, as if he was life tenant pf the moiety. This depended upon the (provisions made for him in the will (of the deceased owner of .the estate, i and the provisions .of the Land and! [Income Assessment-Act, 1908.- By the > (will; the Mount Herbert estate and the stock; etc., on it were .bequeathed' to P*-ustees, of whom Gaisford was one. e, was now the only trustee. The trusts w^re/inter alia, v to carry on the {business of sheepfarming on- the Mount (Herbert estate. . The profits from the jbnsmess were to be "applied (Mrs. RusJsell, an annuitant, now being dead) as ttollow:—(1) To pay the expenses, etc., tof the business; (2) to set asido moneys ffor extraordinary expenses; (3) to set laside annually such sum (if any) aB : fceemed necessary or- expedient to tho trustees as a sinking fund to pay off mortgages upon the - properties then nested in the trustees; (4) to divide rthe balance equally, one-half going to Gaisford.

It appeared to his "Honour that the existence of this third trust was .the one that had caused all th* difficulty. If it had not been there, there would ihave been no doubt:that' Gaisford was -tenant for life of the. moiety of the land, and of the personal Restate, and liable to the graduated land.' tax as assessed. During the years 1907-08 and 1908-09 no part of the income bad been set aside as a sinking fundi Dealing with the provisions of the Land and Income Assessment Act, 1908, bearing on the question raised, it would be , seen, said his Honour, that the Act charged no income tax on the profits made by a landowner out of. the cultivation or user of the.land. This class of income, lite the .income from the letting of houses or other improvements on land, was ■ exempt. It was assumed that the land tax • was the equivalent of the incomo tax. There was an addition to ordinary tax, namely a graduated tax, which was a tax levied on a rising' scale inaccordance ' with the unimproved value "of the land. The graduated tax was levied on different owners of the land, first on the owner of the fee simple, and second it might be levied on those who held a less freehold interest, bnt who were' . entitled to the income or possession .of. the land. They_ were deemed: -the' owners in fee simple- and, were ;alone- . charged the graduated tax. By Section 64, an equitable interest was to be assessed as if it was a legal estate or interest. What then was the estate which Gaisford held?' He was entitled to. half the income of the products, of the land, and of the .stock on the land. He was entitled to something more than half the income l derived from the land, leaving out for the moment the third trust regarding the sinking fund. Was this, not an equitable interest in the land? Tho answer must be that it was'. Did the fact that tho trustee, Gaisford, might set aside some part of the,income for the benefit of those entitled/ on the determination of the life estate or destruction or .change ■ of the life estate? - In his Honour's opinion, \Gaisford was properly designated an equitable life tenant. Ho had also, as' trustee, the control of the estate. None of tho proceeds might ever go to a sinking ■- fund, and none, in effect, did go during the years of tho assessment before the Court. His Honour could not therefore hold that the tax for these years 'had been on a wrong basis. It might ho that the Act required some amendment to provido for the exemption of the life tenants from graduated tax where no income was earned, bnt, aB the land tax, both simplo and gradu-ated,-was not based on income, but on the occupancy of land and its unimproved value, his Honour was of

opinion that Gaisford was liable to be assessed, for he camo within the very words of the Act, and the question of what income he derived did not arise under the..statute.' The statute dealt with' his • status as a landowner only.' Judgment must'therefore >be for the defendant, with costs. ' .

SALE OF A MARLBOROUCH RUN. THE FINAL STEP. The case which arose out of negotiations for the sale of Birch Hill, a Marlborough run of 18,800 acres, was definitely settled yesterday. The action had been brought by Thomas Morland, farmer, of Itakaia, against Frederick Hales, Benjamin Coleman, James Brownlie, John Oliver, and Thomas Wilson,' gentlemen, or Wellington. Edward Somerville, sheepfarmer, of Southbridge, was joined as a third party. , In giving judgment, the Chief > Justice (on April 4) said that two ' purchases of the property had been made, in good faith. The question really was: Which of the two prospective purchasers was entitled to have his bargain completed—Morland or Somerville? The equities m> the case, in his Honour's opinion, were equal, and Somerville, who obtained the first valid contract, was entitled to have the property conveyed to him. Mr. T. Young appeared for plaintiff;. Mr. C. P. Skerrett K.C., with him Mr. H. F; O'Leary, for defendants, and Mr. P. Levi for the third party. In giving final judgment the Chief Justice said that the plaintiff would be nonsuited, and would be called upon to pay the defendants' costs, as though £500 had been claimed, with costs according to scale, extra . counsel five guineas each, second day fifteen guineas. Plaintiff would also pay the coats of the ■ third party. , •

THE LEVIN ESTATE. UNIQUE POSITION DISCLOSED. The originating summons, brought some time ago, by which it was sought to obtain an interpretation of : the will of the late William Hort Levin, was finally disposed of yesterday by Mr. Justice Cooper. '-.-'■'.' The only matter not already was a3 to'costs, his Honour having previously ruled that "upon the proper construction of t the will, of. Mr. Levin, Miss Mbria'Beatrice Levin, the young- ' est daughter, having attained her majority, is entitled to receive the moneys representing the accumulations of her share of the surplus referred to in the will, after providing for her maintenance and education during infancy." Mr. M. Myers represented the trustees, who were in the position of plaintiffs, and Mr. Martin Chapman, K.C., appeared for Miss' Mona Levin. Deciding the question of costs, his Honour remarked that' the case was unique, and in allocating costs he would have to create an authority, good or bad, for there were no previous cases to guide him in thiß instance. • Miss Mona Levin had practically declined to accept the £40,000 offered her by the trustees, hence the need to apply to:, the Court. His Honour would order {the trustees' costs- to be- paid;,out-of'/the general estate' of'the' (toV.be taxed .as between solicitor and • client).'. Miss Levin would' pay .her own costs.. These costs-would'be taxed as between solicitor and client, and paid by. her attorneys out'of the funds belonging to her.'

A NEWSPAPER ACTION. . -' £2000 CLAIMED. ' : The' case of H. F. S. King v. the D,annevirke Publishing Company, was mentioned, before Sir. Justice - Cooper invCbambers yesterday. "-. -Mr. Di ,M. -Findlay, .. appeared'::-far King. .■ Mr.. M., for -.the'ihewsr paper company,'' supported a Bumnions' calling upon, King to show cause rwhy his .action'' against''the--company/ •(a 1 claim;.for,-'£2ooo.damages for '.'alleged Wrongful:'dismissal) should not ; be stayed, in order that' the questions in dispute might be referred-to arbitration. '; , .:.'-.-.:"'.;-. : . ';..:■:,'•'"";•'■' ■;,..

Mr.- Myers. said : that, v .on.'. August 2, of last; year,' King' entered the service of the' Publishing: Company as manager and editor, and-a,.clause of his agreement vrith the provided that any dispute which might: arise out of the agreement should; bo;;referred to arbitrators; . by < the .-' parties. The words.'.iof' 'that arbitration clause we're as-wide'•• as; they could possibly be.-- " '-,■' ,' J f' "■ ; ' : His Honour: They-do not exclude the'-jurisdiction of the court. Sometimes'an arbitration clause'."' actually does exclude" the • jurisdiction..- of the court. : -'■' .'.- •; Mr'.. Myers submitted that the court (vbuld not allow a party who had entered into an agreement to arbitrate to bring.an action, such as this. Mr. Findlay said that, ; in King J ia affidavit, there was expressed an intention to .commence an action for slander. It was intended to amend the : statement of claim to .include that in the present,action./ V His Honour-said .that, in that event, the court would probably ■order separate trials. It was not-possible to mix up a claim for wrongful dismissal with a claim for libel. One:.was a breach of contract, and the other.'was' a tort. The solicitor who had .drawn up the pleadings had apparently not; been aware of the measure of damages that could be awarded in an action for wrongful dismissal. King was probably not getting £2000 a year. Mr. Myers: £400. ' . ■ His Honour: Whoever drew up this statement of claim either had a very wrong idea of the measure of damages, or he thought he might possibly induce the defendant company to come to a settlement. The company, apparently, could have got rid of King at any time, after the first year, by giving him three months' notice.

Mr. 'KncQay said that the company had called upon King to resign, and had taken his name "off the imprint of the paper. This latter fact would give rise to the assumption that something was seriously wrong, and the fact thathe was manager, as well as editor, was of importance. His Honour remarked that the whole slur, .upon his character was that ho absented himself (.without., leave , from Thursday.;;till Monday., morning.. ... Mr. Myers: We have said no more. Mr. Findlay said that there was a slur cast in the manner of his dismissal. ■' ' • ■ r. His .Honour said that tihe claim could not : he for more than four months' salary, and it might be-'less, if he got other employment. • ... : .. , Mr. Myers said that the claim would be for ynly about £130, and the Court must take into consideration the expenses incurred in taking a large number of witnesses from Dannevirko to Palmerston for the trial The utmost King could recover, if ho succeeded, would be £100 or less. This dispute came within the ! arbitration clause of the agreement, in counsel's opinion,' and it should be referred to -the arbitrators; 1 ' ■ His Honour said that ho would peruse the documents, and forward his decision on the summons from Christclrarch. Until it was disposed of, the summons would act as a stay of proceedings. NEW TRIAL SOOOHT. In Banco yesterday, Mr. Justice Chapman heard a' motion;for a new' trial of tbe'oase of Charlotta Treadwell v. the Wellington Dairy Company. The case had come before Mr. Justice Chapman and a special jury in October ' last, Mrs. Treadwell-- claiming [ £650 damages for alleged nuisance,

caused by the proximity of the company's stable The jury awarded her £104 damages and costs. ■ The company now moved for a new trial on the -grounds -(1) that his Honour had misdirected the jury; (2) that damages were excessive; and (3) that the verdict was against the weight of evidence. Mr. P. J. O'Regan appeared for Mis. Treadwell, and Mr, A. Blair' for the Dairy Coy. Mr. Blair, in the course of his address, laid stress upon the weakness of the plaintiff's evidence, and urged that the amount of damages was excessive.

Mr,. O'Regan argued that his Honour had rightly directed the jury, and that it was the province' of the jury to determine the credibility of the evidence, which was admittedly contradictory. The jury, having done so, it wasuot for the Court to question their finding. In regard to the damaeos, there was nothing, counsel contended, to show that the jury had not awarded a reasonable amount, on the evidence. His Honour said that he had no hesitation in deciding against the company on two of the grounds of appeal.. There had been no (misdirection, and the jury had not gone beyond their province in determining the value of. the evidence. Decision upon -the question, of' excessive damages would be" given-in a, week's time.

BANKRUPTCY MATTER. A petition for the adjudication of Elizabeth Somerville as a bankrupt came before Mr. Justice Cooper yesterday in Chambers. His Honour remarked that tie matter had been, adjourned again and again since November 19, 1909. - Mr. W. G. Somerville asked that it should be allowed to stand over indefinitely. His Honour, decided that, after a 21 days' adjournment had elapsed, the petition would l be considered without any further delay, and a definite ruling given upon it