COURT OF APPEAL

Gisborne Times, Volume XXIV, Issue 1801, 6 July 1906, Page 2

COURT OF APPEAL

LYSNAR V. DUNLOP.

(Par Press Aspociatioa-) Wellington, last nighl

In the Appeal Court to-day the ease Lysnar y. the Dunlopa was resumed, Dr. Findlay, for appellants, contending that the letters written by respondent to appellant reoognised that the transaction was an absolute sale, and not regarded as a mortgage. Dr Findlay completed his argument for appellant at 20 to 1 t. J-p. and opened tha ease for respondents. He contended that the fmdmg of fraud on the part of the appellant by the learned Judge in the Court below was a hading of fact based on observation of tho witnesses when giving evidence, and that being so, it should not bo reversed unless the Court came to the oonolusion that the finding was quite unreasonable, the judgment in the Court below proceeding on tho grounds—(l) that the transfers, though in form absolute, wore intended to be security only; (2) that even if tbe documents were intended to be absolute transfers they were void on tbe ground tbat they did not contain true consideration ; (3) tbat the transfer from Mrs Dunlop to appellant was voidable, whether e sale or a mortgago, because of the relationship between the parties of solicitor and olient. It was not so muoh on tho evidence of respondents as on documentary ovidenco and the evidence of appellant himself that this conclusion was come to by the Judge in the Court below. Fraud at the time of taking the transfers was not found in the judgment. Fraud took place not in taking security in the form of an absolute transfer, but in afterwards setting up that that seourity was an absolute transfer. He (Mr Skerrett) would not oonsent to appellant being cleared from the oharge of fraud, but on the other hand, he would not press the contention that the oharge of fraud should he affirmed. The value of the property was of no importance because of the equitable doctrine of " once a mortgage always a mortgage,” whioh gave a mortgagor a right to redeem at any time within 20 years, and whatever the rise in value of properly there had been. Mr Skerrett concluded bis adfiresß at 4 p.m , and was followed by Dr. Bamford, junior counsel for respondent, who addressed his argument solely to the question of delay on the part of respondents in bringing tho action into the Court below. He contended that that delay wa3 not suffic’enl to disentitle respondents to succeed. The oa3e is proceeding.