SUPREME COURT.

Gisborne Times, Volume VII, Issue 396, 22 April 1902, Page 3

SUPREME COURT.

CAEBOLL-WIPERE TRUSTV. BANK OF NEW ZEALAND. .(Before His Honor Mr Justice Conolly.) At the Supremo Court yesterday Mr W. L. Bees, on behalf of the Carroll-Wi Pere Trust Estate, moved for an injunction to restrain the Bank of New Zealand from proceeding with the advertised or any other salo of the property set out m schedule A of the claim, until the further order of tho Court; (2) that accounts be T ord-r red to bo taken between the plaintiff and defendant bank ; (3) that it be referred to Ibe Registrar of tho Court at Gisborne to ascertain what, if any, loss the estate has suffered. Mr W. L. Bees, with Mr H. B. Lusk and Mr B. N. Jones, for the plaintiffs, and Mr H. D. 8011, with Mr C. A. DeLaulour,

for tho defendant .'/ank. Mr Bees sair; * J the statements were lengthy because they related to a long series of actions extending over twenty

years. Thoao in dispute at any rate ex tonded over 13 yoars, and the document! put in from 1892. The circumstances wore altogether peculiar. Vast interests wero at stake, involving .£200,000. Hundreds, if not thousands, of natives were concerned, and tho proceedings involved such issues that they could not bo compressed. Tho primary object of the presont action was to prevent a sale and ask that accounts should bo rendered as between tho trustees and tho mortgagor. There had been no separate accounts given of any of theso mortgages. Ho admitted it was not intonded to soli in ono lot, but as against specific lots thoy showed no liability. For instanco, tho Registrar was asked wbat amount would redeem Parumuta, and he could not stato Thoy wore all put under ono general lia bility of £137,000. The notico given under the Act to the Native Minister and tho notice given to the Registrar did the same. The Bank paid no money for these mortgages, which wero taken in aid of the old debt, supposed claims against tho old Now Zealand Land Settlement Company. Tho Bank were to spend some sums on improvements, but tho Native owners wero unablo to obtain any information as to the amounts. They had not received accounts ; neither they nor tho receiver had been able to get the information either as to what they had spent on the ■land or rocoived from it. Thoy had not had an account to this day. When it was soon tho sale was going on, a letter was sent from Mr Carroll demanding the accounts, and it was said that thoy wero threatening the Bank. The trusteos did not oven know how tho dobt had mounted from £85,000 to nearly £140,000. The proceedings in tho Validation Court ceased last year, when the Judge renounced jurisdiction. Tho Court of Appeal had upheld the Judge, and though an Act had been passed validating the Court’s actions, tho Court was now practically defunct. Therefore the plaintiffs had to come to the Supreme Court to get relief. He did not suppose there had over been in New Zealand a case so complicated aud going over such a great length of time as this ono of Carroll and Wi Pero. Mr Boll: Will there over bo an end of it ? Mr Rees said ho did not thinn there would bo until Parliament intervened. They had been before Parliament five or six years endeavoring to secure finality. A number of documents relating to transactions in the matter of mortgages, decrees, and orders of the validation, etc., having been put in, Mr Rees called John Brooking, Registrar of the Validation Court ip Gisborne, who produced the decree No. 3 in tho Paremata block, made by Judge Barton. Mr Rees said he would put the decree in. His Honor : What is it all about ? Am I supposed to road it and understand it by just glancing through it ? Mr Rees : I can only tender it as evidence. The dooument is put in to show that the bank was a party to the proceedings which made Carroll and Wi Pere trustees for the owners. Hiß Honor said the main part of the document was giving the fee-simple of the land to the trustees to deal with. Mr Bell said tho decree was simply a validation of their mortgage. His Honor said the document only confirmed the bank's title to the land. What was it put in for ? Mr Rees said he did not dispute the bank’s title. The document was evidence that tho brnk were parties to Carroll and Wi Pere being appointed trustees for the owners. This was denied in the defence, which Btated that the bank had nothing to do with dealings between the Natives and their trustees. After further argument, the document was admitted, and read by the Registrar, His Honor remarking that it was a waste of time, and he would not pay the slightest attention to it. Mr 801 l asked permission of His Honor to defer his cross-examination of the witness until he was re called by Mr Rees on tho following morning. His Honor consented to this being done. Mr 801 l to witness : I should like you to produco a few documents that I shall require. You say that as far as you know you have no accounts filed in .your Court in 1899 and 1900. Witness : As I previously stated, I have just returned from the Coast, and ha.ve only looked through the documents which I have in front of mo. These were picked out from the papers in the office. Mr Bell produced an account for 1900, and asked the witness to make enquiries as to whether he had not a similar acco.unl filed. Witness: It is probable that the ac counts may be with Mr Dixon, of the Lane Office. . , Mr Bell asked for documents in regard to Paremata aud Maraetaha, and continuing said: “You are Registrar and Mr Batham is Judge. Mr Batbarn is also Registrar of Lands. You suggest that these accounts may bo with his deputy of lands. I tell you that these documents ought to'be in your custody, and 1 suggest to you that as an officer of the Court you may perhaps think it worth while to seek elsewhere for them, and have them in this -Court to-morrow. Mr Rees protested against Air Bell s remarks to tho witness. Air Bell: Ido not suggest that ho will not do it. Air Rees : But I object. His Honor : What do you object to? Air Rees: I object that an officer of tho Bar should tell the Registrar that if documents are not in his possession that ho is to go aud find them. Air Bell: I did not say so at all. All I said was that if this gentleman suggests that those documents might be in custody of any deputy of tho Judgo that he would probably think it right to complete h:s record. Will you see that the accounts you bavo iu your possession are furnished to-morrow ? Witness : Yes. N Air Bell: I may tell you that an account was sent to the Judge in the year

1901. Mr Rees: I object to this. His Honor : You cannot objeet. Mr Rees: Counsel tells the witness that accounts have been sent to the Judge. His Honor: Ido not see what harm there is in telling the witness that if the accounts are not in his office then they are in the Judge’s office. C.H. W. Dixon, Deputy-Land Registrar,

produced the certificate of title for Maraetaha No. 2, section 4, dated December 29th, 1599. The certificate was issued subject to the decree of the Validation Court. „ , Henry C. Jackson, one of the receivers in the Carroll-Wi Pero estate, gave evidence as to tho accounts he had obtained from the bank. He had received accounts from April 30th, 1895, to July 23rd, 1897. Witness had seen other accounts iu the Validation Court, filed up to 1898. Witness had an office in Lowe “’•street, and it was opened almost daily. As far as he know, he had done most of

the work in connection with the estate. Under the directions of _ the Validation Court, .witness was entitled to seo all accounts in regard to the estate. Judge Barton also directed that he should see all papers without payment of fees. in the year 1898, he commenced to address Mr Foster upon the subject of accounts. "Witness took this step in consequence of repeated applications made by the Natives interested as to the position with the bank. He was only speaking of the

validated titles in the estato. Upon the occasion of Mr Foster’s visit in 1898, immediately after the bank had obtained the permission of the Court to completo the survey of the Maraetaha block, witness spoke to Mr Foster, telling him that he desired to speak to him upon matters in connection with the trust. Mr Foster replied briefly to the effect that ho did not desire to speak to witness upon any question of these lands and the dealings with the bank. Tho purport of his reply was that he (Mr Foster) would manage tho lands without dictation or interference. Nothing was said about correspondence 1 on the matter. Subsequent to 1898, witness searched and made enquiries in the Validation Court with regard to accounts furnished by the Bank, but could find none. On the 11th August, 1900, witness received a letter (produced)

from Mr DeLautour giving him notice that accounts up to March 31st, 1900, had been filed that day with the Judge of the Validation Court. Upon receiving tho [ letter he enquired daily of the Registrar of tho Validation Court with regard to tho accounts, but could hear nothing of them.

He did not enquire from the Judge, for tho reason that as far as ho could recollect Judge Batbam was not in Gisborne. Witness had not received copies of the accounts either from Mr DeLautour or Mr Foster. From the accounts ho had seen it was absolutely impossible for him to malco himself familiar with the details of the accounts of tho validated blocks. Tbo accounts he had seen gave particulars of the expenditure on particular blocks. Ho had taken no part in tho settlement of any accounts since 1897, when tho accounts for tho year 1595 were before him. Ho bolioved large sums of money had been spent on certain blocks, but he could not stato this from his own knowledgo.

Cross-examined by Mr 8011, witness saw accounts in the possession of Mr Rees showing expenditure on the Maraotaha block. He did not go to Mr Do Lautour and ask him about the.accounts, for tho reason that he was advised by the solicitor not to do so. Ho could not say whether he showed MrDoLautour the letter. Mr Bell was continuing to crossexamine the witness upon the reason given by Mr Rees that he should not go to Mr DeLautour in regard to the accounts, when Mr Rees objected on tho ground that tho witness should not be asked questions upon what passed between himself and solicitor. His Honor made a note of Mr Rees’ objection. Continuing, witness said that ho did not remember asking Mr Rees whore he got tho accounts of Maraotaha from. From tho nature of tho documents he should say that they were furnished by the Estates Company. Ho did not ask

Mr Rees from whom bo recoived the accounts. It was only a fortnight ago that he saw the accounts, and then only for half an hour. He believed the acaccounts of Paremata were also shown by Mr Rees.

At this stage Mr Rees offered to put in the accounts referred to, but Mr Bell said he preferred to examine the witness. Mr Rees objected, and contended that the accounts should be received. His Honor overruled Mr Rees’ objection. Proceeding, witness said that under the name of Mahia, the expenditure of Tawapata was given. He had inspected very few of the properties. He understood that Te Pua (Maraetaha) was chiefly in bush. The only blocks over which the bank had specific mortgages and which were unlet, from which any profit could be derived, are Paramata, Tawapata South, and Te Puai. He did not ask the Court to believe that he had been kept in the dark in regard to the Bank’s accounts. Mr Rees : What does that mean, being kept in the dark ? Mr Bell: Have you not known what stock there is on Paramata? Witness : I have seen what is rendered in the accounts. Mr Bell : Have you had no further information ? Witness : I have visited the block, and seen the stock there, but do not know how many. Mr Bell: Have you been there during the last year or two ? Witness : No ; I have not. Mr Bell: Have you had any discussion with Mr Carroll on the matter ? Witness : Yes ; to some extent. Mr Bell: Did Mr Carroll explain that he did not know the position ? Witness: I have told Messrs Carroll and Wi Pere frequently that I have not had accounts. Mr Bell : Have you been familiar with what is going on ? Witness: I did not know what was going on. I had no communication from Wi Pere or Carroll until the former returned from Wellington. His Honor: How long is it since you had any communication ? Witness: 1 should like to explain His Honor: Answer my question at once ; you are shuffling. Witness : I am not shuffling. His Honor: You have been shuffling all through. Mr Rees : I should like Your Honor to take the explanation. His Honor : There is no occasion. All I wanted to know was how long that period of no communication was. The cross-examination of the witness continued with frequent interruptions from Mr Rees, His Honor finally remarking : “You cannot object to every word Mr Bell puts. It seems to me you want to cross-examine the witness yourself.” In answer to further questions, witness said that all documents executed by his co-receivers hod his concurrence. As a rule, he was consulted by them in all things. The Court adjourned at twenty-five minutes to seven, the cross-examination not having concluded.