INDEMNITY WANTED

Evening Post, Volume CXXVI, Issue 82, 4 October 1938, Page 13

INDEMNITY WANTED

CLAIM BY MAORIS

USE OF NATIVE LANDS

A claim for indemnity against the payment of £23,500 to the Egmont Box Co., Ltd., was the basis of an appeal brought to the Court of Appeal yesterday by Hoani Te Heuheu Tukino, chief of the Ngatituwharetoa, against a judgment of Mr. Justice Smith in favour of the Aotea District Maori Land Board. Negligence and breach of duty in dealing with land between Taumarunui and Lake Taupo were alleged against the board. On the Bench were the Chief Justice (Sir Michael Myers), Mr. Justice Lallan, and Mr. Justice Northcroft. Mr. M. H. Hampson (Rotorua) appeared for the appellant, and Mr. W. A. Izard (Wanganui) for the board. On December 23, 1908, a deed of agreement for the sale of timber on an area of land between Taumarunui and Lake Taupo, and for the construction of a railway, was entered into between the Maniapbto-Tuwharetoa Maori Land Board, on behalf of certain Native owners, and the Tongariro Timber Co., Ltd. The respondent, the Aotea District Maori Land Board, shortly afterwards substituted for the Maniapoto-Tuwharetoa Board. On September 9, 1914, the Tongariro Company entered into an agreement with the Egmont Box Co., Ltd., under which the Egmont Company agreed to provide moneys necessary for certain railway construction within defined periods. The agreement dealt also with certain timber-cutting rights which the Egmont Company had acquired. In 1919 a new agreement between the two companies was approved. It was provided by legislation that the cancellation of the agreement between the Tongariro Company and the board.should not have the effect of cancelling the agreement between the Tongariro Company and the Egmont Company. The board cancelled the agreement between itself and the Tongariro Company in 1930, and under new legislation was authorised to enter into a new contract with the Egmont Company, the parties to agree mutually on the terms to be incorporated from an agreement of October, 1919, and other terms subject to th/ 6 approval of the Native Minister. If any dispute as to the terms arose, the decision of the Minister was to be final, Eut if the Egmont Company were dissatisfied with the decision the parties were left to their respective rights and obligations under the 1919 agreement. RIGHTS "UNDER AGREEMENT. Neither the board nor the company took legal proceedings to ascertain their rights under the existing agreement, and negotiations continued from 1930 to 1934 without settlement. Towards the end of 1934 negotiations were instituted by the Native Minister for a meeting between the Egmont Company and the board, with two representatives of the Crown, to discuss a settlement of all the Egmont Company's claims, including the relinquishment of its cutting rights over the timber and the giving up of its possession of the land. In 1935 the Minister, as no agreement had been reached, fixed £23,750 as the amount which the Native owners should pay to the Egmont Company to release the board and the Native owners from their obligations under tha 1919 agreement. The board attempted to dispute the amount, but on the Minister's direction paid £25,500. The legislation of 1935 also required the Egmont company to assign to the board securities held against debentures issued by the Tongariro company for £26,000. In the Supreme Court Tukino sought a declaration that the, board's failure to obtain from the Court directions as to the legal liability of the board and/or the Native owners to the EgImont company, or to terminate the contract of the Egmont company and sue for damages was negligence and/or breach of duty; and that the boards failure to represent to the Crown that it would be wrong to make a settlement until the liability and the Native owners had been determined was negligence and breach of duty. The plaintiff further claimed an order requiring the board to indemnify the Native owners and their lands against the payment of the £23,500 or part of Mr. Justice Smith, in his Supreme Court judgment, said the sole object of the proceedings was to obtain an indemnity against the payment of the £23,500. In dismissing the action, his Honour said the basic answer to the claim was that a person was not under a legal liability for doing an act which he was directed to do by an Act of Parliament. Mr. Hampson submitted that the board was either a trustee for the Native owners or a- statutory agent in a fiduciary capacity owing the duty of a trustee; that the board was not exonerated from breach of duty because the obligation on the Natives arising out of the breach was imposed by Statute; and that the section of the Act in question was contrary to the Treaty of Waitangi and ultra vires. The whole reason for the action was that the board's solicitor considered that tho 1919 agreement made the Natives guarantors of all moneys advanced by the Egmont Box Company to the Tongariro company. The injustice of throwing liability on to the Native owners was recognised by the board, the Minister, and Cabinet. Mr. Izard submitted for the respondent that the money was paid by force of statute, and payment could not now be questioned; that if an Act of Parliament had been obtained even improperly, it was for the Legislature j to provide the remedy; and that the appellant, in order to succeed, must show not only that it was the duty of the board to seek the opinion of the Court, but that if it was so sought the Court would not have found that the money was due to the Egmont Company. Mr. Hampson finished his reply today, and the Court reserved its decision. >