SUPREME COURT.

Gisborne Times, Volume V, Issue 95, 1 May 1901, Page 3

SUPREME COURT.

Before His Honor Mr Justice Conolly.

CIVIL SITTINGS.

WILLIAMS AND SHERRATT v. COLEAIAN.

The Supreme Court was occupied for the greater part of yesterday, hearing the case Henry AVilliams and Alice Georgina Sherratt and AV. G. Sherratt v. John Coleman, executor and trustee of the will of Alexander Blair, late of Gisborne, deceased, being a claim for performance of contract for sale.

Air H. D. Bell, instructed by Air AV. D. Lysnar, appeared for plaintiffs, and Air DeLautour appeared for defendant. In-’their statement of claim plaintiffs claimed that by deed of lease of 23rd July, 1880. made between Alexander Blair, and AVilliam Adair, the lessor did lease sections 31, 32, and 33 of the town of Gisborne, together with the Argyll Hotel, and all other buildings and erections on the land for the term of 21

years, at a yearly rent of £4OO. The deed of lease |provided that should tho lessee at any time before the expiration of the term give the lessor notice in writing stating the intention of the persons giving such notice to purchase the reversion in fee simple they could do so at the price of £IO,OOO, subject to certain conditions which the plaintiffs were ready to comply with. In the meantime Air Blair died, and Air Coleman, the defendant, was appointed executor. Air Adair sold his interest to the plaintiffs, who gave the required notice to purchase. There was another provision in tho deed to tho effect that a brick building, valued at £4OOO at least, was to be erected on the premises before the end of the term, and the defendant alleged that the erection of this building was a condition precedent to the right of purchase. On a counter claim the defendant sought possession of (he premises and buildings thereon; £IOO for arrears of rent; £36 for occupation from Alarch 23 ; £SOO damages for-plaintiff’s broach of covenant to erect brick buildings; and costs.

A statement of defence to the counterclaim denied the allegations that there had been default or broach of covenant, but admitted the liability to pay £IOO rent, which they said had been duly tendered before action was brought.

His Honor said he had a difficulty in seeing whore the breach was, because supposing it could be held that they were obliged to spend £4OOO in brick buildings, they had three months yet to do it

Air Bell said they were quite prepared to show they could do so. They had not committed a breach, but whether they had committed a breach or not, the authorities were plainly in their favor. They did not propose to call any evidence except on one formal point as to the receipt of rents. Plaintiffs, he said, in conclusion, contended that it was perfectly plain. First, they they had tho whole term to perform, and that in any case the other 3ide werebring-

their action too soon; and in the

second place, there were no damages, since the property was vested in equity in them. Cases were quoted in support of

his contentions. William Grice Sherratt, the husband of one of the plaintiffs, stated that he did the business connected with the estate, and had collccted-athe rents up till recently. Tho amounts collected' from the sub-

tenants were £1156. The ground rent was £4OO. Rates and taxes were paid partly by themselves and partly by tho tenants. They had spent £1327 2s 6d on the property since they became assignees. They had paid Air Adair £2750 for the assignment. Roughly their income from the property was about £7OO. By His Honor: The assignment from Air Adair was made about a year ago, in March, 1900. Cross-examined by Air DeLautour, witness stated that he had acted as agent for his wife in making the purchase.

Before concluding tho purchase he knew as a fact there was such a covenant.

They had obtained advice about it before they purchased. They did not obtain tho consent of the estate to the expenditure of this £I3OO. There was no part of the premises now vacant upon which they could build in brick. They had, however, made arrangements to build in brick. They stopped when Mr DeLautour’s client handed them notice that he was going to re-enter in two months’ time. He did not tell Air Coleman that,

Air DeLautour : Then may I say you have no arrangements now to build in brick ?

AVitness: It was postponed after we got lie notice.

Do you intend to build in brick before June 23rd? AVitness: AVe would if you had not served the notice.

Air Bell objected on the ground that witness’s intentions were not evidence.

His Honor upheld the objection. By Mr Bell: He had the plan produced prepared by Messrs Creighton and McKay, of Wellington. It was received in January last, and was the plan of a brick building. The cost was to be between £BOOO and £IO,OOO. That involved the removal of wooden buildings. His Honor, examining the plan, said one of the buildings appeared to be the Argyll Hotel. Witness said it was so, the building extending up to Miller’s corner, but leaving Miller’s out.

Mr Bell put in the assignment Adair to plaintiffs, and closed the ease for plaintiffs. Mr DcLautour, in opening, contended

that there was one lease, not two agreements, and the'option to purchase could not ho hold to be an agreement in relation to the lease, so as to cause the option of the lease to be mutually exclusive one of the other. Mr Bell was in error in assuming that he had the whole term in which to build in brick, or in which to exercise his option. His Honor : Where does that appear? Mr DcLautour said it appeared in the lease itself. Ho asked His Honor first to observe that the quarterly days were not concurrent with the termination of the term. The termination of the term was the 23rd Julv, and the date of the lease was the 23rd July. The last quarterly term was the 23rd June. Therefore, the last day on which they could complete under their option of purchase was within the term, and not at the expiration, which was a mouth within the term. .In other words, they must destroy the term in order to buy. Mr DeLautour submitted that, although they appeared to have the right to buy at any time before the expiration of the term, they clearly could not buy in the month of July at the end of the term. So that this was not a case where the covenant was concurrent with the termination of the term. The cose must turn on this: Whether the other side could give a valid notice unless they had complied with jail the covenants of the lease.

His Honor: That is the real question: Could tlie plaintiffs give notice, and thereby become purchasers in equity, unless fhoy have complied with all the covenants in the lease ? Mr DcLautour said that point was really raised in tho 10th and 13th paragraphs of the statement of defence. The construction of the lease throughout favored the position that defendant had taken up, There was this apparent anomaly: That the existing premises at the time of the lease were to bo kept insured at the cost and at the risk of the landlord. Then he covenanted with his tenants to put up brick buildings—there was no provision for any other improvements of any kind —to the value of £4OOO. Counsel contended that the mere giviug of notice to Build in brick stamped the default. He would bring evidence to show that during the term the tenant had, with full knowledge, neglected' and refused to, build inhriok, and that he' had attempted to Vary the lease by applications to the landlord, and had always been met in the same way, namely, that the lease woiffd npt be i altered or varied. For the defence evidence was given by William Adair, merchant, John Coleman, and W- P- Finneran, architect, Counsel having addressed the Court at some length, His Honor said he was of » opinion that there had been 1 no breach at . all in this case. Judgment would be for plaintiffs for injunction restraining defendant from re-entry, and for a declaration that the option to purchase had been rightly esergisod,

Costs were allowed on the highest scale as on £4OOO, and for second counsel, £8 Bs. MATEROA V FINN. CLAIM FOR £875. The Court was occupied in the afternoon with the ease of Heni Alateroa and another v. Joseph Finn and another.— This was an application to declare a transfer from Bennett to Finn and from .Finn to Baty fraudulent, and for payment of £875 and interest, the amount received for the land transferred to Baty, and they asked that Finn be ordered to render his bill of costs as solicitor. Air AV. L. Rees, with Air Lusk, appeared for the plaintiffs ; Air H. D. Bell for defendant H. J. Finn ; and Air AV. D. Lysnar for defendant Bennett. The statement of claim stated that in December, 1886, Katarina, acting on the advice of her solicitor, Joseph Finn,

agreed to transfer section 334, Kaiti, to the defendant, Charles D. Bennett, to be held by him in trust for her, the object of the arrangement being to secure the defendant Finn the payment of all costs and charges then'properly payable to her solicitor. That Kataraina died in August, ISB9. That up to that date her indebtedness to the defendant Finn for legal costs had never been ascertained. That after the death of Kataraina, and on .or about 20th March, 1890, defendant H. Finn and Chas. D. Bennett agreed, without the consent of plaintiffs, with full knowledge of the aforesaid trust, and in fraud of plaintiffs as administrators that they should transfer the property for £390 6s 3d, no part of which sum was ever paid to C. D. Bennett or the plaintiffs. That such transfer and alleged sale was fraudulent on the part of defendants. That on the 12th April, 1892, Finn sold the section to AVilliam John Baty and received £875 for the section.

The statement of defence set forth that plaintiffs were not the administrators of the personal estate of Katarina Kahutia, and that they had not been duly appointed successors of Katarina Kahutia for section 334, Kaiti. That prior to 1886, Katarina was indebted to him in the sum of £lB4 18s 3d, for which amount a bill of costs was duly delivered, and no part thereof was paid by her. That 11. J. Finn did not act as solicitor for Katarina after the end of July, 1886, but then ceased to so act as her solicitor until February, 1887, as G. K. Turton during that period acted as her solicitor. In 1887 defendant, when a partner with E. J. Chrisp, again acted as solicitor for Katarina. Costs dated Ist October, 1887, for the sum of £B7 3s lOd were delivered to her, and no portion of such bill of costs was paid, and the defendant then ceased to aet as her solicitor. The defendant Hugh J, Finn denied the truth of the statement that Katarina, on his advice, had transferred tho section 334, Kaiti, to C. D. Bennett to be held in trust for her. -Defendant Hugh J. Finn said that

the transfer was made on the recommendation of plaintiffs’ solicitor, G. K. Turton. The other allegations in the statement of claim were denied. Defendant denied that the transfer subsequently made was fraudulent, but claimed it was made in satisfaction of the claims of the defendant Finn and Messrs Finn and Chrisp against Katarina.

John Brooking, Registrar of the Native Lands Court, produced succession order, dated‘lltli May, 1891, of section 334, Kaiti, in favor of Heni Karo and Paore Keiha as successors to Katerina Kahutia.

By Air Bell: The order is not stamped, and has never been taken out. I think it requires a stamp. Air Lusk said that the order.was sealed with the seal of tho Court. He submitted

that it was good evidence. There was no stamp duty payable under a succession order in the Native Lands Court.

Mr Lysnar : There is always stamp duty paid. Mr Lusk said that authority for that should be produced. His Honor : There is objection to it being taken as evidence ? Mr Bell : Yes. If it requires a stamp it cannot be taken as evidence.

His Honor : That is clear. Surely in this district where there are so many Native land transactions the requirement should be known. Did the document require a stamp ? Mr Bees : I submit not. The duty under the deceased estates had been paid.' His Honor asked Mr Brooking what was the rule followed.

Mr Brooking said he had seen such orders stamped, but he could not say whether it was required. He had nothing to do with the stamping of documents. His Honor said it was an extraordinary thing that with so many gentlemen present with large experience in Native matters, they could not decide a matter of this kind. He could not say himself. Mr Lusk said that he had registered hundreds of such deeds in Napier ; they had been accepted, and no stamp required.

Mr Lysnar: The practice hero is to stamp all orders. Mr Bell suggested that the matter be allowed to stand over until this morning, which was agreed to. C. H. Walter Dixon, District Land Registrar, was then called and gave evidence as to the Crown grant of the section and its transfer on 12th April, 1892, from H. J. Finn to J. Baty for £875. He produced declaration of trust between C. D. Beunett'and Katerina Kahutia. By Mr Bell: The stamps are £l4 15s and a fine. He presumed part would be Native duty, which would be ten per cent on the value, a consideration. The fine was £5. In 188 S the books were done by the postmaster, and would not show Native duty. Mr Bell: Has any duty been paid under the Deceased Persons Estates Act, 1885, on the transfer to Bennett and declaration of trust. AVitiiOks: No.

Mr Bell: Then I object to them being tendered as evidence, because they are a deed of gift under Section 9 of the Deceased Persons Duty Act, ISSS. After this lapse of time I feel justified in making any technical objection. Continuing, Mr Bell said that His Honor, and also the Chief Justice, had held that even though a part of the payment might be for a debt, such a document could not bo tendered as evidence, as the duty must be paid. His Honor: Of course, there is a penalty. What is the provision ? You. say that one of the parties should have made a declaration. Suppose I say it can be admitted on a fine being paid, what would be the value 25 years ago. Mr Bell: Nevertheless, it cannot be submitted as part of the evidence in this case. If you can ascertain the amount payable, and it is tendered, then the document can be admitted, but not otherwise.

Mr Lusk said that Mr Bell could not substantiate his objection, as he was not in a position to show that duty had not been paid. There were stamps to the amount of £l4 15s on the document. His Honor : Is there anything to show what that is for? Witness : No ; not on the document. His Honor: How much is on the declaration of trust'? Witness : Ten shillings and £5 fine. Mr Lusk submitted th'at the case did not come within the one quoted by Mr Bell as fatal, in re Chambers. The section had been vested in the ,-donee for sale and the proceeds were to be handed to the donor. Also a part of the money was to go in payment of Mr Finn’s costs.' In the case re Chambers the property was given in lifetime to avoid the death duties. In any case he submitted that the document could bo tendered. In reply to Mr Bell, the witness said that the deeds were properly stamped. There was no deceased person’s duty there. The £l4 15s might include some rates. Mr Bell said if his friends persisted in putting in such a deed they were liable.

His Honor said he was very averse to

rejecting the evidence, because, however willing the parties might be, it would bo difficult to ascertain the value of the property and the total value of Kahutia’s

estate. He did not see how it could be done. He would admit the documents to be tendered, subject to the objections raised by Mr Bell.

Or. J. A. Johnstone was called, and produced the papers in a Supreme Court action Native Lands Settlement Company against C. D. Bennett and others.

Mr Lusk said that the action was about this very land, and he asked leave to put the papers in. His Honor: In that case they ought to be read.

Messrs Bell and Lysnar wanted to know the object of the papers. Mr Lusk said it was to produce exhibits taken in that case, in which was the certified copy of a letter by Mr Finn.

. His Honor : That would not bo evidence, an admission of a copy of a letter in that case would not mean an admission in this case,

It was agreed to allow the papers to'he put in showing the dates of proceedings. Witness, continuing, produced the Trust Commissioner’s note book of 2nd October, 1888 ; also the note book of January 13th and 14th, 1889, both having relation to the section. Mr Bell asked that it be noted that in both cases the applicant was Mr C. D, Bennett.

By Mt Lysnar : The Commissioner always required notice to be sent to the natives. That was the custom of Mr Booth’s Court.' It was not till later on that proof had to be given of service. The first declaration of "Katerina was dated 24th December, 1886, and the second one was dated 17th December, 1888, by the same person. The first one was signed before the late Mr Booth, and the second by Mr Westrup, who he believed was now in South Africa, (Declarations put in.) Edmund J. Chrisp, solicitor, deposed that he was formerly in partnership with Mr Finn, The partnership commenced about January, 1877, and dissolved about September, 1890. He believed that in 1887 the firm was acting for Katerina. His firm must have acted for her up to 1889, judging by the documents. He had not kept the books in regard to this native; he did not remember having seen her or knew what the firm did before that action —he knew that a bill of costs had been rendered to her by the firm for the sum of about EIOO. By the costs book he saw that the amount was £B9, rendered on the first of October, 1887. It was from February 10th, 1887, and ended September 25th of the same year. The bill was signed by witness. There did not appear to have been work by the firm for her from September, 1887, to March, 1889. Apparently no statement of defence was filed by the firm on December 14th, 1888, A transfer to Bennett was charged to Katerina, also the cost oi survey re Kaiti (■£2llos), and the stamp duty (£29 10s). The account would be taken into consideration in the settlement at the dissolution of partnership. The amount was placed in the unpaid accounts. The declaration of trust by Mr Bennett was in the handwriting of one of the clerks, Mr Bullen. The transfer from Katerina to Bennett, December 24th, 1886, was in Mr Finn’s handwriting. Mr Bell: Do you mean to say that you understood the account was still owing the other day ? Witness : No; if I said so to Mr Bees I misunderstood him. It became Mr Finn’s account after the dissolution.

Witness, continuing, said he had no personal cognizance of the items charged for. Mr Finn,having acted in the matter, would be the only one to know. He believed Mr Turton had acted for Katerina at one time, but could not say when. The incident that fixed the fact on his mind was that he heard an altercation between Mr Turton and Mr Bennett.

Mr Lusk objected to anything about the altercation.

Mr Bell: We will get that from Mr Bennett.

Mr Bees called Captain Tucker as a witness, but assuming the Court would be adjourned he had left for his home in the country. Mrs Carroll was then called, but no arrangement Bad been made for an interpreter, and the Court then, adjourned until 10 this morning.