APPEAL ALLOWED
W. D. Lysnar v. National Bank PRIVY COUNCIL DECISION London, January 24. The Privy Council has given judgment in the case of W. D. Lysnar versus the National Bank of New Zealand. The appeal was allowed with costs. The appellant, Mr. William Douglas Lysnar, is one of Poverty Bay's bestknown public men. He practised as a lawyer in Gisborne for many years, but later took up sheep-farming. He was Mayor of Gisborne for some years, and later represented Gisborne" in Parliament. In 1932, Mr. Lysnar proceeded against the National Bank on a claim for £51,409 for damages for the loss of his Arowhana Station, in the Poverty Bay district, which he alleged was caused by the bank breaking a contract. The bank counterclaimed for £70,000 for Mr. Lysnar’s current account indebtedness to the bank. Prior to March,. 1931, the appellant was the registered proprietor of Arawhana Station, and the National Bank, the East Coast Commissioner, and the Public Trustee all held mortgages over the property. In 1931 the East Coast Commissioner sold a portion of the station to recover arrears of interest, and bought in the property himself. Mr. Lysnar then entered into negotiations with the bank and the East Coast Commissioner to see if some plan could not be arranged whereby he could secure a fresh tenure of the portion ot the station which had been sold by the commissioner. In May, 1931, Mr. Lysnar was given a letter by Sir James Grose, general manager of the National Bank, setting out the terms upon which the bank would agree to his remaining in possession of the property. Mr. Lysnar contended that this letter was a definite acceptance of a contract, but the bank maintained that the letter was sot intended as an acceptance, that the contract alleged was not finally concluded on Maj' 1, and in any event was subject to certain conditions which appellant accepted but apparently failed to. communicate to the East Coast Commissioner as he had undertaken to do. At thq hearing of the claim in December, 1932. his Honour the late Mr. Justice MacGregor held that the appellant had failed to prove that the bank had entered into the contract alleged either on May 1, 1931, or on any other date, and he entered judgment for the bank. In their joint judgment in the Court of Appeal, Mr. Justice Reed and Mr. Justice Smith said that for the purposes of his claim that accord and satisfaction of his liabilities to the bank had been made, the appellant pleaded three-party agreement made between himself, the East Coast Commissioner, and the bank. They were of the opinion, however, that the appellant had proved neither a tripartite contract, nor, if two contracts were intended in form, that the contract between himself and the bank ever became operative. In the result. therefore, the judgment appealed from was right and the appeal must be dismissed. In the course of his dissenting judgment, Mr. Justity? Ostler remarked:— “I regret that I am unable to agree with the judgment of the majority of the Court. The learned judge in the court below has held that the documents support and. are in accord with the evidence of the bank officials. To my mind the documents contradict the evidence of those officials, an! are in accord with, the evidence of appellant, and, for the reasons I shall state, in my opinion the evidence of the bank officials contradicting their own written document was inadmissible, and should have been rejected when objected to in the court below.” His Honour added that even if the appellant succeeded to the full extent of his case he would still have been hopelessly insolvent, because 'against his claim of £50,000 the bank’s claim against him was. £70,000, and it would seem that the litigation would still have left him up in the air. At the Privy Council hearing, Mr. Lysnar appeared in person as appellant, and Mr. Gavin Simmons, K.C., and Mr. C. J. Parton appeared for the respondent bank.
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Dominion, Volume 28, Issue 104, 26 January 1935, Page 7
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673APPEAL ALLOWED Dominion, Volume 28, Issue 104, 26 January 1935, Page 7
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