LAW REPORTS.

Dominion, Volume 5, Issue 1501, 25 July 1912, Page 2

LAW REPORTS.

SUPREME COURT

DULLERvCASi-A HREE'fiIFT'

{ DUTY TO BE PAID (

"litavo ciiiW'tß , tKe^'6s'clllste'ii , "tHftt'+he'. atateiiient mado by Sir Walter Buller in! his' third codicil is'.true, and that Ivereru was "Jin fact 'a free gift' from him to I his ;sons.: I #m .unable,;, to accept the| othej alternative, nhjuelj" ;thq;pro. perty thgm for/£6OOO. y. p There is Hbsolutofy no evidence of such a sale. I am asked merely to infer it from what nppoara to-hare been, for BOflie purpose,' an elaborate system of deception." This remark was'.made by' Mr. Justice Copper ;itt the-Supreme Court yesterday morning when deciding a claim for gift'duty made undeT tho Stamp Acts Amendment Act, 1891. Tho plaintiff to tho ..Action was his Majesty tho Kin?. Tho defendants were Walter • Leopold Buller, of Wellington, Gilbert Mair,' df Palmerston *\North (surviving' executors of' tho will-of Six Walter Buller, barrister, late of Wellington), and A. L. Herdmah and H. S. 'Anderson, barristers, executors of tho r-will of Arthur-'l?ercival-Buller, -b«T--ristor, • lato of Wellington. At;'tho hearing:tho Solicitor-General (.Mr.-J. W.' Salmond) appeared for tho Crown, and Mr. C. P. (with* him/ Sir. •H. E. Anderson), for the de? > fondants. - .t\ pi M •

TSo Solicitor-General, on behalf of his Majesty tlii King, prayed judgment for ft sum of <£400, being <£200, the amount claimed upoii-an assessment of gift-duty,. and'j<£2oo; a penalty of lOOSper -"centj'oiv 6ucli. gift duty, claimed to -be dub "upon a memorandum of transfer executed by tho'.kte Sir Walter Bnllcr on February 28, *i 893, whereby Sir Walter, purported <o transfer to his two sons, AYaltcT Leopold' Buller, and. Arthur Percival -Buller,- ® block of land at 'Iverecu in the county o.f Stanawatu. Alternatively the SolicitorGeneral asked the Court to declare that giftT'luty wag payable ou the land comprised in theJtnmsferj on-.a value .of -EIO9O ii fine of <£100 per cent on the amount of duty so payable, and thafe the defendants be ordered, to pre* senMhe Memorandum of Transfer to the Conrijnissioner "$f ,Stamps:, for a'ssessinerit ■of gift duty itTiereoip. The parties agreed thatf the whotheivthe memorandum;- of transfer, was subject to gift duty should bo determined by way of action instead of by Vay of nppeal from the .decision of tho Commissioner of Stamps. : It> appeared'that in and prior to the yfaf, 1893, * Sir Walter vms"Kio registered • proprietor; and beneficial owner in tee simple of 1000 acres of land in tho cou&ty of Manavatu knowii-as the Keroru 28, ,1893,, ho executed a memorandum of "transfer of thia.land-(less, a: reserve-of-60 aCres) to his sons, Walter Leopold Buller and Arthur Percival Buller, in equal /.shares ns tenants in comnlWl:" The 1 t'ransfer~purported to be. in consideration l of the'sumof .62000 alleged in the transfer'to'have becm. paid by his sons to him: It 'was .prepared ..'presumably by Sir H alter'BdllCf : 'himself Or under his direction:- 1 Jno: solicitor's name is'endorsed .upon it, btit Sir. Walter Bailee's signature is. attested; By; MiK'.J'. Anderson, solicitor, . .Wellington,. who is now dead. It \ was stamped on February ~28, 1893, at tho Stamp Office,.W^lljpgloii,,with, a stamp of . £15, the ad-valorem duty on'fi eonsidera- . tion of <£2000,'""but"it* "was hot regis-. tered,.<-H-ttotlU'i- December. ; • 12,' - 1895The value - of,, Sir -Walter Buller's estate at the date of the transfer' (and subsequently) exceeded the sum of <£20,000. »It iAvas'hlleged :; fn'.*'th6' defence that";pner.;to:Sir Walter Bulfe's departurei for England, he arranged to transfer t ?,q!.% f ?9! i s\tho.KereriiJEstate for ~'the'con-. sideration of <£6000, which' lie informed his ".sons.'w'as owiiig 't'o.'Mr. .B. M-. Holy-' jeatiK .then manager at Wellington for the Bank of New South Wales, on mort- ' gagg.'lSLiijwl' cpnt..;..peivannum.;'';: It' .was. .that the two sons- executed a, mortgage over,.the property! to' Mr. iloly- . .'f,We.: this ,sunr bfc <£6000.' and. jl-here was, in -fact, however, no ■ sunl,bf?!moi|oy due to Air. Molyneiix. Mte-ft,-lengthy Teview of..the. evidence, documentary/and. otherwise, .'bis.Honour w u M';f^,iio -jart-M.'the,sum of:<£2ogo stated as theconsideration in the.transfer dated'JEebriiary..'2B.:lM,"was-ever paid." and .that thd, statement . in, the deed is false;,that it;is proved that,- nevertheless, - Sir , :;BuUor,' /i slioL'tly after.. this! transfer was executed, entered sons on the land tax"register as owners of tho *i n( J -in qucstionj thut, tlio meinoriindum transfer; w ds registered -oii-i)eeeihher 12, 3595,.and.Jiad.been,stamped • .-<£2(100,., falsely_ ; .therein. stated; that the laud was then Worth a ™, r £ .great, (lyal;. mors; that, a iilemovannuui !of was apparently given by &ir/Wal.tor;.B.uller's "sons'MJtr. ; Molyneaux to secure;: tho : payment of .an at-Jesed-suih «£GOOO, said to- have Ijean ■' advanced' to : thorn j ■■ .that - ho mon-eys.ivere advanced .by 'Mr.-Molyineauv to tp,enl;,;or ,?itheri of them, iior .'was 'anr* advanced to them- by the Bank, of Aew,.f>nuth Wales, oF- which iiec.wns manager; that, unregistered, ' """ appears .to « have- vanished,- and nn . dratt . or. .copy'.has been .produced;, that it, is t said, although there is no proof of ,lt, that Sir Walter Buller-told his sons that he lowed'.the ..Bank; of New South .".alfi® <£6000 on the-Kereru Estate; .that he did not, in* fact, owe the bank any - niory-y.frthat a- declaration of trust is Stated by Mr. irolyn.eai|x„tn, hnyo.Jjeen sign-' ed.-ncknowledsiiw that-he-held themortRagn for Sir Walter.' Buller, buFthe deelaratiom.as well .as. tha"'mortgage, has vanished, and 110 draft or copy has;'been 0 produced; that 7 the. .ohlv . living person who;- apart-from Mr. Molyneaux,*could have given evidence concerning the trans- , action, is Walter-Leopold. Buller, -and, althouprh he was one.of the defendants,- and i. s^a,a ' ifl •"fpr.'.soine.'.iiionths afte.iv the action was" brought he.-was.al-lowed-to leave Aew-Zealand.without.giv-ing his evidence; and that;Mr'. Molyheaiix can give 110 evidence,'and has not eiven any evidence, explanatory;.^pfrtlie-'trans-" action between Sir Walter .'Buller and his sons; that; , whatever' the',VitciHg'nH'" tnay have heen intended io.be, Sir Walter Buller s-.letter,s show, that for ,'onie vears -. 3 ,r : p r th"h.e- 'trMte ( l :it. ' .iq Vin-. A nn' Kig -,letter.^*-thAt he had paid "it off", is nil-' .. true m fact, as ..nq-simi. of. nioner was ever duo to, or ,paid' to. the hiorteayee; ■ thatjor many de- . ceived Mr. 3lol.tneanx v i)l'. J r6lntitfn to the allewl mortgage; that althoueh the =ons paid a jearito, their.:father. up to Marph.-l. i --190S > -they were-for-practically: ..Qt ;,thiA. time, (lrawini? v£4oo a" Jand,- that. 0n December -, 18 2 3 ' iv " 1 ™. 1 : Bnller in his third - codicil to his will nn to .most....omphalic manner, .declared ..that the sproperty-had been a.free gift by him to his sons,' share and- sharo 'alike,- this • provision 'in his will being., ; intnndMl;., to speak,, not - from' the time of his death, hut as a solemn , statement that .the property, had. bc-en given • by .him"tp;his.-sons'j and.-.lastly; th'at tho executors, of.the will, of Sir -Walter-Buller admittedly bannot' discover that he' ever made to either of- his ■sons a.ny advancos against Keroni, nor is there any record existing— at any rate -none has been pro-duced-t,shoeing:, that lie ever- treated his pons 9-sihi?-debtors'in-T«fcrence-to Ivereru' in his books ,

Finally his'Houo'iil- said • "'Aftel- giving a very; anxious consideration to the oii" cumstancss above stated, I'have come to the conclusion that the statement made by Sir-Walter.Jßuller.m-Kis,third.Codicil is true: and"that Kereru was in fact V free. srift'_.from.. him_to.iiia-soiis.'l_ I-.am-unable .to .accept the other alternative, 'namely,'-.that-the property was told ,to thorn: for .'ntld that'' tKe /ji'ilTchnse moTKsy .was 'secured by tlia apparently lest mortgage/^.There- is absolutely: no 'eVi-' ■ denCO' W .'fiueh: tr sale. I am asked merely to ihfiepi.it-'from -what ajipears" to )iav'e' been, for some..purpose,.airelaborate system of deception.-- I;' of - course, entirely exoneriifeMl;r.Jlolyjieailx:."fi'om any cetlsds>us participation';in this-system;- If this property" liiid'. in .triitlt-' lieeri sold, to tho" «>tt?,l.then''.f.he .solemn statement in the third codieal is fake. I think that tho presumption in."'sji_ieh~.fi case as this is j,lifit"the.; fort I. truth is .what-is stated in the-'codicil to' Hie will of tlie ;dceea.s:'ij. Anil ifthe p'ropertv had bem sold to the sons, then Waller. %'opold'/Billw, -oijie : of ; the'

fondants, and the eldest son of Sir Walter Buller, has had :tho opportunity of having .his evidence taken in this action, and has o,hoien to leave for England without beiiV,' examined , Tho Act of IS9I, takes out of the definition of a deed of gift, trnnsfon< of property 'made in favour of a bona fiilo- purohoser for valuable, consida ration in money/-. I find it impossibly, after jwoigliing all the circumstances in th e ease, : to believe that tho, transferees in til is .case were bona fide pnrchasers. In my <>,pinion, the substanco of the transaction , however Sir Walter Buller may have .'a'n'icd to disguiso it, was a gift of the'property to bis sons." JudgtugnjLiras.accordinjly given for the Crown. for .£loo,' with costs on tho middle fcale.