LAW REPORTS.

Dominion, Volume 7, Issue 1871, 3 October 1913, Page 11

LAW REPORTS.

COURT OF APPEAL. POWER TO LEVY ON DRAINAGE. BY LOCAL BODIES. CITY AND JIIRAMAB CASE. / An important point with regard to tlio power of local bodies- to collect certain moneys in respect of drainage work was argued before the Court of Appeal yesterday. The caso was that of the City, of Wellington and' the Borough of Miramar v. the AttorneyGeneral and tho Publio Trustee. The case was introduced by nil originating summons under the Declaratory Judgments Act. It had previously como before the Supreme Court, but had been removed into the Court of Appeal by His Honour Mr. Justice Sim.. On tho bench yesterday were Their Honours tho Chief Justice (Sir Robert Stout), Sir Joshua Williams, Mr. Justice Cooper; Mr. Justice Cbapman>, and Mr. Justice Sim. Mr. J. O'Shea (City Solicitor) and Mr. V. R. S. Meredith appeared for' the corporations of Wellington City and Miramar Borough; Mr. J. W. Salmond, K.C. (SolicitorGeneral) for the Attorney-General,'and Mr. J. W. Macdonald for the Publio Urustee. The Broad Position. The position, as disclosed by the proceedings, is that, under the provisions of tho _ Municipal Corporations Act, power is giren to local bodies' to enter into agreements with property-owners, whereby the local body carries out drainage work on tho property, the cost to bo repaid by the owner in instalments, which are recoverable as a rate. Local bodies hare generally been of the opinion that they were entitled to recover from all persons holding an interest in the property, including first lnortcajrees, in tho same manner in which they could recover ordinary rates under the Rating Act. The decision of the Court of Appeal in the caso of tho Wellington City Council v. Gilmct' and Maguire, to the effect that electric light charges were recoverable only from tho actual user, had thrown doubt on tho position of moneys advanced for drainage. Tlie Issues to Decide. The questions asked in the originating summons were:—• Are instalment moneys payable by owners of premises to a council in respect to drainage work gilder Part 23 of the Municipal Corporations Act, 1908 (or any borough by-law on drainage and sanitation), recoverable as a rate under tho provisions of tho Rating Act, 1908? Where such moneys are repayable by instalments, is each of such instalments recoverable at tho option of tho local authority froin tho occupier, and' from any person owning •an interest in tho property (including an intorest as first mortgagee), or from the person actually in occupation of tho premises? Do the provisions of the Rating Act relating to the registration of judgments and subsequent selling and letting of property apply'to instalments ? Mr. O'Sbea quoted Seotion 26 of tho Municipal Corporations Act Amendment Act, 1910, which provides that a publio corporation may give a person notico to do certain private drainage works, and ih default of his_ doing it, the corporation may carry it out, and recover from the owner of the property the cost of tho work, and expenses. Such cost and charges shall bo a charge on the premises in respect of which such work was done. .Mr. O'Shea contended that such a charge was a charge on every intorest in the property, and a first charge, as in the case of charges under the English Puhlic Health Act, 1875, and many English local Acts. Court's Finding. Tho Court delivered oral judgment, which was unanimous. Tho three questions wore answered _ as_ follow: —(a) Yes; tho owner only is liable. (M No. (c) No. His Honour tho Chief Justice said that.the main question was whether the corporation could sue anyone .but tho owner—as. for instance, a first mortgagee. _ He held that the owner was primarily liable, and the owner alone. The instalments could not bo recoverable from nnvone' but tho owners. Sir Joshua Williams said that there was nothing in tho Act to show that n,nv person other than tho owner was liable. It was impossible to reconstruct Section 65 so as to make tho mortgagee or anv other person liable. He thought that the third question was tho most important. He saw no reason why Sections 72 and 73 of tho Rating Act should not apply. ■ The improvements were for the benefit the whole property, and if money in respect to these impr6vements is not paid, the whole property should be subject to liability. Their Honours Mr. Justice Cooper, Mr. Justice Chapman, and Mr. Justice Sim concurred'.