INVOLVED APPEAL CASE

Dominion, Volume 14, Issue 176, 21 April 1921, Page 9

INVOLVED APPEAL CASE

LITIGATION OVER TIMBER RIGHTS

LENGTHY NOTES OF EVIDENCE An involved case was commenced in the Court of Appeal yesterday before Their Honours Mr. Justice Hosking (President), Mr. Justice Herdman, Mr. Justice Stringer, and Mr. Justice Salmond. The litigation arose originally over a dispute as to certain rights oyer timber country in the Auckland district. The claim involved an amount something over £46,000. When the case was heard by His Honour Mr. Justice Sim, in the Auckland .Supreme Court, 24 witnesses were called, the case lasting four days. The volumes of notes of evidence, claims, letters, together with the full text of the Judge’s decision, produced yesterday fo% the benefit of the learned Judges and counsel, contain 230 large printed pages. It is thought that the hearing of argument will occupy three days.

The appellants were the Waimiha Sawmilling Company, Ltd. (in liquidation) (Mr. C. P. Skerrett, K.C., with him Mr. W. D. . Campbell) and the respondent Thomas George Cook Howe’(Mr. A. H. Gould). The appeal was against a decision given by His Honour Mr. Justice Sim in the Auckland Supreme Court, in March, 1920. The decision of the Judge upheld the right of Howe to determine an agreement with the present appellants in relation to timber and railway rights over a portion of a block of land known as "Rangitoto Tuhua," in the Auckland province, the rights having been granted by agreement made in December, 1916. The plaintiff company had held that the defendant, under the agreement, was bound to obtain in their names such rights and privileges as might he necessary to enable timber to be transported from the plaintiffs’ mill, and that the plaintiff company were bound to erect the mill, and to keep the plant in constant work. The plaintiff company contended that Howe obtained the necessary rights of way over certain Native lands, but did not obtain those rights over certain Crown lands. In January, February, March, and Mny, of 1919, the defendant had alleged that the plaintiffs had been guilty of various breaches of agreement. To these allegations the plaintiffs had replied that certain of the alleged breaches followed upon the position which had arisen in regard to rights of way, and other privileges; and in excuse of the other breaches alleged, had put forward the explanation that operations had been hampered by industrial and war conditions resulting in shortages of labour and material, by the effects.of the influenza epidemic, by the railway restrictions which prevented the carriage of timber from July 1 until September 21, 1919, and by the fact that an undertaking made by the defendant to fell certain timber could not be fulfilled. Following the defendant’s giving notice of the alleged breaches on plaintiff’s part, the defendant, in purported exercise of liis rights under the agreement, took possession of the land. Plaintiffs considered that the re-entry and determination of the agreement was illegal, in that the plaintiffs had not committed any breach of the agreement. The plaintiffs further stated that the parties had agreed to submit their differences as to certain alleged breaches to arbitration, and that while that arbitrtion was pending, the defendant wrongfully determined the agreement. Hamtiffs also stated that an agreement, as to the payment of 'royalties, had been reached; and that they were ready and willing to meet those obligations. Following the re-entry of the defendant, the plaintiff company, it was stated was financially embarrassed, and went into voluntary liquidation in June, 1919. Fne plaintiffs Sftade several alternate claims as follow:—(a) Should it be held that the agreement was a lease and the defendant's re-entry wrongful, a sum of £WX) be given as'damages, made up of the loss of interest on £25,600 at 6 per cent, for five months, interest, on £9060 (debentures at 10 per cent), loss of profit. (£2000) ~ deterioration of mill and plant (£2695), loss of profit, owing to rise in prices of timber (£1000), dispersal of employees (£1135), various smaller sums; (b) should it be held that the •re-entry was lawful plaintiffs asked tor relief against the forfeiture; (c) should it be held that the agreement was not a lease, plaintiffs claimed £BOOO damages, and asked for a declaration that the plaintiffs were entitled to possession; (d, should it be held that, the agreement was not a. lease, that the determination was unlawful, and that the plaintiffs werenot entitled to possession, they claimed damages for wrongful determination

amounting to .£46,501 odd matte JP of refund of capital expenditure (X18,574R loss of estimated nrofit on 40,000,000 feet of timber (£22,500), interest on capital (.£427). and damages for loss of way, “leaves” or freight over tramway.-, which plaintiffs had laid (<05000); together with such other relief as the Court might think fit to grant. . . In the course of his judgment, Hi. Honour 'Mr. Justice Sim held that the plaintiffs had. failed to prove any agreement by the defendant to waive the breaches of the agreement, and nccordingIv he gave judgment for the defendan. on the claim for damages, indicating that, the defendant was justified in ‘ietermining the agreement; but relative to the plaintiffs’ alternate claim for against forfeiture, the Judge Tided that that portion of the case f 1 over for consideration until after the Court of Appeal had decided whether or not the agreement was a lease withui the meaning of the Property Lan Act, for the appellants was put forward by Mr. SkerrOtt illld the case will be continued to-daj. \