SUPREME COURT.

Gisborne Times, Volume XXV, Issue 2167, 24 August 1907, Page 4

SUPREME COURT.

DUNLOP v. LYSNAII. J UDGE DENNISTON’S DECISION,

In the Supreme Court in Chambora yesterday. the .Registrar, Mr. W. A. barton, 'read' the judgment of Mr. Justice Dennistou in the caso James Charles Dunlop and another v. William Douglas Lysnar, heard at Gisborne ou ..lay -b i i,. 15 v transfer dated 24tli August ISPS the pmiutilf Emma Mary Dunlop transferred to the defendant a parcel ol land ou which was erected a house and cottages. Shortly afterwards the defendant, removed the cottages, entered into possession of tin- land and occupied the house. In 1905. by judgment in this action, it was adjudged inter alia that this transfer was obtained by fraud and contrivance ot the defendant and was void and of no effect; that it was executed by way oi security only for the purpose ol securing payment l» v the plaintiff James. Charles Dunlop oil costs and charges due to him by the defendant; and that the plain-

till' Emma Mary Dunlop was entitled to redeem the o roper tv upon payment ol monoys found duo to the defendant upon accoui ts and enquiries taken and inndo as provided by the judgment—to be takon and made by. the' Registrar of the Supreme Court at Gisborne. Upon appeal this judgment was amended by striking out the first paragraph thereof: “procured bv fraud and contrivance of the defendant’’ and adding the [ words “be and tho same are hereby set aside.” Some consequent aniond- | monts were also made in the beforei mentioned accounts and enquiries. These, as amended, so far as they are pertinent to the present motion were: 1. An onqwiry as to the value of all buildings removed by the defendant from, tho property comprised in the said transfer. 2. An enquiry ns to tho fair occupation rent to be charged to tlie defendant while in possession of tho said property. 3. The rent and profits received by defendant while in possession of the said property from August 10th 1898. 4. An enquiry as to what permanent alterations and improvements, including repairs strictly necessary to render the said property tenantable before the defendant went into occupation thereof so far as to enhance the saleable value of tlie said property. 5. By what sum such permanent alterations and improvements have enhanced tlie saleable valuo of the property. The Registrar of the Supreme

Court at Gisborne, in pursuance of these directions, held an enquiry occupyiing seven days and taking .a great amount of evidence, made his report to this Court. ■As'to tho first subject of enquiry, li e reported (paragraph 1) that the value of the buildings removed was, one cottage £SO, and one £60 —total £ll°. , , . . . As to tli© second, 11© s©"o out* i'll detail (paragraph 2) what he found to be a fair rent for the two cottages until tlie date of their removal, and for the dwelling-house up to the date, of the judgment. These rentals are based on the assumption that the landlord pavs rates and taxes and keeps the buildings in repair. >ln each ease the Registrar deducts what lie thinks a fair percentage for repairs. The net amount he finds is £794 19s 7d. As to the third (paragraph 3), he finds that the rents received by the defendant were £B9 16s. As to the fourth (paragraph 5), lie finds the permanent alterations and improvements effected bv tho defendant have enhanced the saleable value of the property to tlie amount of £SOO. The plaintiff’s motion is made render Rule 438, and asks for the opinion of tho Court upon certain objections taken by them to the certificate of the Registrar in respect of the first, second, third and fifth paragraphs of such certificate. .Rule 432 provides that any party shall, either while any accounts are being taken, enquiries made, acts done, or proceedings taken, or wntliin fourteen clear days after such accounts, enquiries, aots, or proceedings liave been completed, and before the certificate or return shall have been signed or adopted, be at liberty to take the opinion of the Judge upon any particular point or matter arising in the course thereof, or upon tli© general result thereof when completed.

The objections in tlie present summons are in the first place objections upon tho general result of the enquiry. The ground of these are in each case that tlie of the Registrar is against tho weight of evidence. On the argument of the summons the plaintiffs have claimed to bo entitled to open up tlie whole matter of the reference as if on appeal to the Judge on a matter of fact, or that they are at least entitled to show that on the evidence the certificate was entirely unjustified by, and inconsistent with, the evidence. I have not been referred to any authority which shows that oil such a reference as the present tlie parity objecting to the Registrar’s finding can ask the Judge as a matter of course to in fact re-try the question referred. To do this would, in effect, throw upon the Judge tlie duty which tho Court has relegated to the Registrar. Any such general objection to anv finding of the Registrar must. I think, be dealt with on the principles which would be applied to a motion for a new triai oil the ground that the verdict of a jury, was against tlie weight of evidence. That is, that the findings are so obviously inconsistent with tho evidence as to show, either that the Registrar had acted on a wrong principle in dealing with them, or had been influenced by im-

proper motives. I have read the somewhat voluminous evidence taken by the Registrar. He has. it seems to me, throughout preferred the evidence given by the defendant’s witnesses to those of the plaintiff’s. But, as it was admitted bv the plaintiff’s counsel, there was, in every instance, evidence, which, if believed, would support the conclusion of the Registrar. It has at no time been suggested that the Registrar had acted dishonestly or from any improper motive. That being so, a Judge ought not, so long as the Registrar takes a proper view of the reference, to interfere unless in very special circumstances, with the discretion entrusted to the Registrar and form liis own conclusions of fact on the evidence. The Registrar not only saw and heard the witnesses, but ho was familiar with the subject matter of the enquiry. Unless, tlierfore, it can be shown that the Registrar' acted, in arriving at lvis findings, upon some wrong principle or obviously overlooked any evidence, I do not think that it is open for me to vary them, or to send them back to him for further enquiry. There are certain specific objections stated in the summons. The first, second, and seventh objections are tlio general ones with which I have dealt. The third (besides the general objeotion) is directed to the finding as to what is a fair occupation rent to be charged to the defendant while in possession of the property, and claims that the deductions in respect of upkeep are not authorised by the judgment, and that if any deductions shoud be allowed for upkeep, the defondant has failed to prove the expenditure thereon. The Registrar has. in this instance,' shown in ms statemeutt "tlio motihocl ho lias adopiteu in arriving at the amount. He lias taken evidence as to what would be a reasonable rent for the main dwelling and for the cottages while they remained on the land. From this he has deducted the cost of the upkeep of such buildings. It is objected that the deduction of such cost is not allowed bv the judgment. But the enquiry directed was to ascertain what would be a fair occupation rent It was urged that the Registrar had not required evidence of the actual expenditure, but has ascertained what would have been a fair rental for the buildings if kept in proper order, and deducted a fair average allowance for repairs. I cannot see any objection to this method. . The fourth objection is that in fixing this occupation vent, the Registrar should not have reduced the amount of cucli rout ,for tue penou

subsequent to tho removal by the defendant of tlio two cottages (lor tho value of which the plaintiffs have been allowed under tho first head ol tlio reference) from tho land, but that rent should bo charged to tlio defendant in rospoot of tlio whole property ns though tlio said cottagos had not been removed. This objection seems based on a misconception of tlio reference. The main building was, beforo tho defendant’s occupation, occupied as a boarding house. Tho two cottages were used in connection with this. The cottages wore removed and the main building ropaured anti improved, nob for tho valuo of tlio cottages, but as part of a gonoral improvement of tho property, so as to fit it for a dwolling house. It mas on its rental value ns so altered that the assessment had to bo made. As I have before said, there was evidence before tho Registrar which, if believed, would warrant tlio result

arrived at by him. Tho fifth objection is with reference to tho fifth finding of tho Registrar. Tlio direction in the judgment was to enquire “as to wliat permanent alterations and improvements, including repairs strictly necessary to render the said property tenantable before the defendant wont into occupation thoroof, have been effected by tlio defendant to tlie said property, and by what sum such permanent alterations and improvements linvo enhanced tlio saleablo value of tlie property.” The Registrar has not stated what, permanent alterations anti improvements were mado by tho defendant or tlieir cost to him. He has confined himself to stating that tho permanent alterations and improvements made by him bad enhanced tho saleable value of the property to tho amount of £SOO. This enquiry is different in charaotor to tho others. The Registrar lias to ascertain the actual alterations and improvements effected. The reference to the enhanced value is, I think, a limitation, not an extension. Tlie defendant is to be allowed in his accounts no more than ho has actually expended, and of that only what lias (beyond, of course, the repairs necessary to make the house tenantable) enhanced the value. The evidence for the defendant on this point seems to me very vague and unsatisfactory. The defendant oan give almost no detailed account of liis expenditure, except as to the painting and repairing before possession. He accounts very reasonably for this by the fact that as he entered into possession of tile property believing it to be liis own, he naturally kept no detailed account. The Registrar lias aoted mainly on tlie estimate of persons who saw the property before the'defendant entered and in its now condition. They say generally that its selling value is now greater by so much. This must be very largely guess work. There were, however, materials supplied by tlie defendant himself to which I think , tlio Registrar has not given sufficient

attention. On a date, net mentioned, but which must, as shown b<- the document, have been later than March, 1905, the defendant furnished a statement which is headed, “Statement of monevs expended by defendant from 10th August, 1898, with interest thereon.” In this are items: Cost of renovation of property by defendant prior to his occupation thereof in 1899 as per statement “C”—£ls7 19s Id. Erecting and repairing fences, asphalting yards and paths, digging, levelling and sowing down lawns, trimming hedges and trees, cleaning gardens and grounds, planting of trees and shrubs and cutting down oertaiin trees (including trees overhangling footpath as ordered by Borough Coueil), erecting buggy shed, painting and repairing cottages, and miscellaneous carpentering (including new cover to cistern and removal of window from drawing room) completed prior to 31st March, 1900, say—>£l2s.

I have not been supplied with statement “C.” The two items amount to £282 19s Id. They seem to cover all tlie expenditure up to tlie occupation by defendant, and also everything done by him to the property in the way of alterations and improvements up to 31st March, 1900.

But when the defendant files what lie heads as “Claim of the defendant William Douglas Lvsnar against the plaintiff James Charles Dunlop pursuant to judgment,” he deals with very much the same matters in this fashion: Other outgoings: To upkeep and general repaiirs, etc., to proper,tv. including cottages, from time of occupation to date, say—£2so. Alterations and improvements: To laying down of drains, concreting steps, setting range, gas fittings, erecting flagpole, asphalting yards and paths, digging, levelling and sowing down lawns, trimming hedges, and trees, cleaning gardens and grounds, planting trees and shrubs, cutting down certain trees (including trees overhanging footpath), erecting buggy shed, and miscellaneous carj>entering work (including new cover to cistern, removal of window from drawing -room, and necessary repairs before going into occupation) which has enhanced the value of the property by, say—£soo. Th 9 Registrar has allowed to the defendant, in arriving at a fair occupation rent for the property, a very substantial amount (roughly about 16 per cent on the letting value) for repairs, and that without, as far as I can see, an- allowance for the fact that the defendant is given the cost of putting the property auto good tenantable repair before occupying. That disposes of tlio claim for £250. Of the other claim, the first five items—drains, concreting stops, sotting range, gas fittings and erecting flagpole—and the item “necessary repairs before going into occupation,” are not in tho earlier claim. With,

however, every allowance for these differences, there is an extraordinary discrepancy between the amounts stated in the two claims for practically the same things. On the argument before me I was informed that the defendant had explained this discrepancy by the fact that the first statement was made on a judgment which had found him guilty of fraud, and on which ho could not have recovered for these improvements, and that he had therefore been careless as to tlie amount claimed. This explanation seems to me to have been very unsatisfactory. I do not 'think the Registrar _has given sufficient weight to these considerations. I see no reason to suppose that any further information could be obtained on the point, and I do not think anything would be gained by sending the report back to the Registrar for re-consideration. I think the defendant should not he allowed a larger sum than £250 ,on this item, and to that extent I vary the amount allowed to the defendant on the fifth paragraph of tlio report. It was admitted that the defendant is entitled to the deduction of £B9 16s allowed by the Registrar to the plaintiff in paragraph three of tlie report. The cost of the two summons, which I fix at £lO 10s, will bo costs in the case.

Wboit an. expert with tlio standing and reputation of Mr. I)lidding may urvo to srv re the important part played by a liigh-class sheep d'p in tlio production of a perfect fleece -is worthy the moot careful consideration of every grower of too staple. Writing to Messrs. Qiiibol Brothers (Ltd.), of Newark, regarding their, “improved” Powder Dili a few weeks previous to the nr oat English show, Mr. Dodding states : “I cannot speak too highly of its quality for killing filth, preventing tlio attack or mag-got-fly, and improving the fleeco of WOOI . 1 * , c Thcso arc woiglwty words from one whoso pronouncements on such matters cannot be gainsaid.