SUPREME COURT.

Dominion, Volume 4, Issue 1112, 27 April 1911, Page 3

SUPREME COURT.

THE LATE WM. BOOTH'S ESTATE. ECHO OF INTERESTING CASE. A case of interest was finally disposed of in the Supreme Court yesterday by llr. Justice Cooper. The action in question was originally brought by Mabel Carriiigton Hutchison, One of the daughters of the late Wm. Booth, of Carterton, against the Public Trustee, as executor of the will of the late llr. Booth. In this action it was sought to have accounts taken on the basis of certain allegations which imputed negligence on the part of the trustee in the administration of the estate. The reference was particularly a saw-milling business (part of the estate), in which plaintiff and • her two sisters were interested as recipients of the income. The original action was heard before llr. Justice Cooper in May, 1909, and was con- 1 eluded in August, 1910. In a judgment given on January 4 last, Mr. Justice Cooper held that the-losses complained of had mainly arisen through circumstances over which the Public Trustee had no control. These were the competition of a former manager, losses by lire and by flood, loss through depression, and loss through shrinkago in values. The Court also held that plaintiff had failed to 'establish any breach committed by the Public Trustee, and that the other two'beneficiaries not only did not complain of the management, but had approved of it, and had ratified the sale and realisation of the business. In. his Honour's opinion, plaintiff failed to establish any case entitling her to have accounts taken, on tho basis she asked. She had had accounts of the administration of the residuary estate, and of the business, rendered periodically. She was technically entitled to have accounts taken by tho .Court, ■ but,- ! for that purpose,: the other beneficiaries ought to be before, tho Court. In con- 1 elusion, his Honour said that ho would make no order'beyond- declaring that the Public-Trustee was not liable to make 1 good the. losses incurred in-the carrying ' on of the business or its realisation, but : if plaintiff desired to move to have the accounts of- the defendant taken on - the footing of the judgment, lie reserved her leavs: to do so. - - The case was revived yesterday, • by a 1 motion by the Public Trustee to enter up : judgment for him with costs, upon the i ground that, in view- of tho fact that ] plaintiff did not intend to take any ' further step, he was entitled to judgment, i Mr. Gray asked for judgment, with ' costs as between solicitor and client. Mt. Petherick consented to the action being dismissed, but opposed tho application for costs. After argument at some length, his Honour made an order dismissing the 1 action, but stated that, although plain- < tiff must pay costs as between party and ' party, he did not think that ho ought to ! order her to pay costs as between solicitor and client. The authorities, he said, < showed that the discretion to make such an order should only be exercised in extreme cases. If his judgment wero correct (and it had not been appealed from), plaintiff had failed to establish 1 any real cause of action, but he could i not say that the action fell within the < class of case described as frivolous, and ' in which the English Courts had ordered costs as between, solicitor and client. ' Commenting on a_ caso cited by Mr. Gray, i in whic\ His plaintiff, who was n solici- : tor, had been ordered to pay costs as 1 between solicitor and client, his Honour pointed out that the plaintiff, in the present case, was not a solicitor, but had brought the action upon her solicitor's advice, which advice he did not doubt was honestly given, although, • in his view, it was erroneous. , His Honour ordered plaintiff to pay the I costs as. between party and party" on ' the highest scale. Costs tare fixed as ] on a claim- for i£2ooo, and allowance was mad 9 ■ •' )jj, 1

per day, and second counsel for throe day.-) at .£8 Bs. per day, witnesses' expenses and disbursements to l:e ascertained by the Registrar. .Mr. Geo. Hutchison appeared for plaintiff at the original hearing, and Air. .A. Gray and Mr. .M. Myers for the Public Trustee. Mr. F. E. J'ctherick appeared for plaintiff yesterday.