SUPREME COURT.

Gisborne Times, Volume VII, Issue 397, 23 April 1902, Page 3

SUPREME COURT.

CARROLL-WI PERE TRUST V. BANK OF NEW ZEALAND.

(Before His Honor Mr Justice Conolly.) At tho Supreme Court yesterday Mr W. L. Rees, on behalf of tho Carroll-Wi Pero Trust Estate, moved for an injunction to restrain the Bank of New Zealand from proceeding with the advertised or any other sale of the property set out in schedule A of the claim, until the further order of tho Court; (2) that accounts be ordered to bo taken between the plaintiff and defendant bank ; (8) that it be referred to the Registrar of tho Court at Gisborne to ascertain what, if any, loss the estate

has suffered. „ T i Mr W. L. Rees, with Mr H. B. Lusk and Mr R. N. Jones, for tho plaintiffs, and Mr H. D. Bell, with Mr C. A. DeLautour, for the defendant bank. Upon the Court resuming Mr Bell continued his cross-examination of H. C. Jackson, one of tho receivers in the Estate. Witness stated that he did not ask Judge Batham whether any accounts had been filed at his office. Mr Brooking had that morning told him that he had found one other account in his office. Witness had repeatedly asked Mr Brooking, Registrar, whether accounts had been filed. Witness’ salary was fixed at .6500 for the first five years, and then to continue until terminated by the Court. Witness was reexamined by Mr Rees at some length, in the course of which His Honor remarked that ho would have been pleased had it been decided that tho Supremo Court was not the proper tribunal for the case before it. He would certainly have had a natural bias that way. ..

Mr Rees : Yes, the case is one attended with groat intricacies difficult to solve, and it is hardly right to drag in a Judge. Mr Boil: It is a very easy matter to solve.

Mr Rees: Practically tho Validation Court is dead. The Judge has not been here for six months, and tho only tribunal wo could como to was tho Supremo Court. His Honor: Ido not understand how tho Court can be dead. Mr Rees : The Registrar can do nothing because he is merely an administrative officer. Of courso legally tho Court is not dead but practically it is. It ought to be closed up. In answer to Mr Rees witness stated that he had nevor told either Mr DeLautour or Mr Foster that he agreed to any account since 1895. Witness had never received any rents or profits from tho lands excepting Mangaheia. There was a sum of £4l in connection with Paromata that he received. He had received demands from the Bank, or rather from Mr DeLautour who was acting for tho Bank, requesting payment of interest, etc., in regard to certain blocks. His Honor: Ido not see how this arises out of the cross-examination. It appears to me new matter. Is it material, Mr Rees, for we do not want to be too much encumbered with documents. Mr Rees said he wished to show that there iiad been a demand made for tho principal sums. Continuing, witness said that he had not received any demand for the payment of .£137,000. ' , Mr Bell: The witness is not one of the mortgagors and would not receive a demand. It is quite irrelevant. Witness in answer to further questious put by Mr Roes said that he believed that there were motions by the Bank still pending in the Validation Court. He had received notice of these. Mr Bell applied for permission of the Court to ask the witness whether he had applied for vouchers, but His Honor replied that it was perfectly clear from the evidence that Mr Jackson had never asked the Bank, Mr Foster, or Mr DeLautour for anything. ~ John Brooking, Registrar of the V alidation Court, was recalled and examined by Mr Rees. Witness produced a number of decrees of the Validation Court which Counsel asked to have admitted as evidence. His Honor said that the result of putting in such a crowd of papers was that ho would not be able to read any of them. Numerous papers bad been put in on the previous day and it was too much to expect him to read them. “ Look at this one,” remarked His Honor, “it is like one put in yesterday, and is a perfect volume. It really seems absurd.” Mr Rees : I do not ask the Court either to examine or read them. lam bound to put them in to show the titles of the parties and tbo limitations of the parties. His Honor : What is the use of putting them in? . Mr Rees : I must have evidence before the Court of the titles and the restrictions on each block. It is absolutely necessary if I am to prove the case as alleged that the bank was party to tho agreement. This is the only evidence. His Honor, handling another decree : “How paany more of these things are there ? Cannot they be put in a bundle ? I cannot see how they can affect this question. They may have something to do with the case, but I cannot see it at present. , , . , . , Mr Rees : Of course the object is to connect the Bank with the whole proceedings, a knowledge of the whole position of the native trustees and the natives, they being parties to every one of the decrees and claiming title under them. His Honor: Is it not a common ground that Carroll and Wi Pere .are trustees for the natives ? Mr Bell: Yes, that is quite a common ground. , , . , Mr Rees continued to hand in documents aud remarked that in order to save time ho would give His Honor the names ijof them. . , , ~ 1 His Honor : lam not going to take all the names down. How many are there . Registrar : There are six; we will mark them H.H. (The alphabet having been exhausted with the number of exhibits put in the letters bad to be duplicated.) _ Mr Rees then proceeded to hand in papers dealing with the Tahora Block, but His Honor again pointed out that the Tahora Block had nothing to do with the present case. . . Mr Rees replied that certain claims were made by the Bank over portion of

the Tahora Block. , . , , His Honor said that Mr Rees had lost smbt of what his statement of claim really sol out. Ho however allowed the documents in regard to Tahora to be put in. Mr Bees said that there were m all thirteen mortgages. His Honor : Has any portion of it to do with Tahora? Mr Bell: No, nothing at all. Mr Bees: 1 know perfectly well that money is claimed as portion of this debt to the Bank. I appeal to the proceedings as to whether the Bank does not seek to place .£ISOO of this debt on the Tahora Block. I propose to offer notices of motion of the Bank of the proceedings. His Honor: And that ovidenco is dis--111 AUhis stago His Honor intimated that unless the ease was finished on Friday it would have to stand over until the next sitting. Ho thought that Mr Bees might as well bring in all the papers out of the Validation Court and tender them as evidence. Ho would not look at any of

4 Mr Bell: What your Honor has said with regard to the case not terminating before Friday has terrors to me, but none to mv learned friend. _ His Honor : It seems that Mr Bees is doing an he DOssibly can to prevent me giving a judgment in this case this sitting. 8 Mr Smb? I am only tendering you evidence I think to be proper. I should not be doing my duty to my clients un ‘ e HK Honor: It is a great pity you can-

not present the caso in a more compact form. You throw in a pile of deeds which I claim to be immaterial, and you say, l put these in as evidence.” Go on air Bees. _ , Mr Bees, to the Registrar : You have a note of these in one bundle ? Mr Barton : Yes, Mr Rees. “Witness, continuing, said that ho had come across the Bank’s account for 1900 amongst a bunch of papers left in Judge Batham’s office. He had frequently known papers to be given to Judge Batham, although he would not say that it was a common practice. To Mr Bell: He would not swear that the accounts for 1901 were not amongst the papers in the safe. He would not be surprised if the account for that year were

discovered in the office. Wi Pere, M.H.R., was the next witness called. He stated that he was a party to the deed by which the lands of the old Bast Coast Land Company came into the lands of the Trust. His Honor : What is Wi Pere called to

prove ? Mr Rees : First, that ho was acting at the instigation of the Bank in regard to tho transactions with the Natives, also that whilst acting as receiver and trustee he had asked for accounts. His Honor: It seems to me that a great deal of the evidence to be given by Wi Pere will simply be a repetition of that given by Mr Jackson. In fact, a great deal might be admitted. Mr Rees : I desire to prove from Wi Pero that the bank was a party to all transactions with the Nafcivo beneficiaries. I intend to call evidence apart from the deeds. , .

His Honor : I will not admit any evidence for the purpose of putting an interpretation on the deeds. Mr Rees : I do not intend to call evidence to put an interpretation on the deeds. I only offer evidence apart to support them. His Honor declined to permit any evidence to show that the mortgagees were other than mortgagees in tho ordinary sense, unless the deeds were open to any other interpretation. In answer to further questions, witness said that tho only _ account that witness bad seen since tho issuing of the docrees was one from the bank showing the indebtedness to the bank, Mr Bell objected to tho details of the account, as it was not produced, and His Honor upheld tho objection. Witness, continuing, said ho had seen no accounts in connection with the stock or produce on the estate, but ho heard from the bank verbally that the indebtedness to the bank had increased. Messrs DeLautour and Foster asked witness to give further lands as security for the increased account, and if they would not give further security tho lands would be sold by the bank. Witnoss did not know the reason of the increase in tho debt to £140,000. He had seen no accounts to enable him to understand it, although he had continually asked Mr DeLautour to furnish accounts. Mr DeLautour had replied that ho would ask Mr Foster to lay tho accounts before tho trustees. He had not seen any account from the bank which showed the debt on each block. 11l Mr DeLautour’s office witness had asked MrFoster for an account of the sheep sold and other matters, and had been told that it would bo given to him. He could not remember the year the conversation took alace. Witness did not get tho accounts, jut probably the receiver had them. He had received no demand for payment of money, but there had been an application for permission to sell part of Paremata for a township. Cross examined by Mr DeLautour: Witness told Mr Jackson to ask Mr DeLautour to produce the accounts dealing with tho sheep. Mr Jackson had informed him that he had no accounts. About a week ago Mr Jackson showed him an account. Later Mr Rees produced the account referred to, and Mr Bell pointed out that Mr Rees now produced a copy of the account that was extracted from the Validation Court. They called up the account, and it was produced from Mr Rees’s possession. Mr Rees : I offered it last night in evidence.

Mr Bell: My point is that it was alleged that we had rendered no accounts for 1900. We extract from the Registrar this morning an account for the period ending March 31, 1900, and then we get a duplicate from Mr Rees. It was sworn to that we had rendered no account for 1900.

Mr Rees said that the account was obtained from Mr Carroll. There was no statement made that no accouuts were rendered, but Mr Jackson had stated that he had not seen it. The statement was made, and was made still, that no proper accounts had been rendered. His Honor : That is another thing. Mr Jackson had said he had seen no further account since 1898.

Mr Rees : He had seen it a fortnight ago^ Mr DeLautour ; Why you "jTroduccd it as the one.

Mr Rees : I djd not.Mr DeLautour ; He said it was the account that lie saw.

Mr Rees : I did not put it in as that Mr DeLautour : You put it in. Mr Rees : It is enough for one counsel to make statements. Mr DeLautour ; You have three. Mr Rees : Yes, but they do not make statements.

His Honor ; Ask Wi Pere if that is the account that he saw. ’ Witness was replying at length in Maori His Honor : Ask him if that is the account that he saw. Witness was again making ail explanation in Maori.. His Honor said that he could surely reply to the question. Mr Rees-: He has said that, your Honor. His HonorNo, ho has not. Is that the account Jackson told you of ? Witness was again explaining to the interpreter in Maori His Honor, in a severe tone : Answer Yes or No ! Mr Rees saying that the witness was a Maori

His Honor : Sit down, Mr Rees ! Mr Rees retorted with warmth that His Honor was addressing a Maori in English, and continuing, he said, “This is a Maori witness, and the account is in English. He states that Jackson showed him an account, but not the account that he wanted. His Honor : I shall put what questions I think fit and not be instructed by counsel as to what it is proper' to ask the witness. Tasked him if that is the- account that Mr Jackson showed him. Surely lie can put that plainly. Witness, who had not been perturbed by the remarks made, replied : 1 will not tell lies and say that it is. It was not openly shown to me what the ac-. count was., His Honor : That will do ; it was not openly shown. Very well, lie cannot tell what it contains, Mr DeLaulour : Did you ask Jackson ?—No s Mr Bell said that lie would like it understood that the account was put fin as coming from the other side. Mr Rees said that he had no objection to that. Witness was next asked if Mr coster or Mr DeLautour had refused to give the accounts, Witness : You offered to -do so, but did liof. We have been waiting for nine or ten years for them. The account they lvad received from Mr Foster was for very little. He had instructed his solicitor to demand the account. (Letter produced). Did you ask your solicitor for them' Witness : No.’ It was a matter with 1 Mr Jackson, and not with my solici-

tor, Mr DeLaulour : Have the mortgage deeds been signed by you under advice of your solicitor ? Witness : Yes—botli my solicitor and Mr DeLautour and the Bank. If I did not sign the mortgage they threatened

to sell the land. Mr Bell : He does not explain how we could sell the land without having the mortgage.. Witness : I wanted us to get an account of how the £IIO,OOO came about —I was satisfied to pay it if it ' was shown. , . His Honor: There is no use making speeches. There is no jury. The notice of sale was put mby Mr Barton, at the request of Mr Reesj Mr Rees stated That the marginal note on it bore the statement that the amount of mortgage was £137,000. The Court adjourned until 10 this morning, when Mr Rees is to call his last witness, Mr Carroll.,