SUPREME COURT.

Gisborne Times, Volume XXVI, Issue 2137, 12 March 1908, Page 1

SUPREME COURT.

HALF-YEARLY (SITTING. Tilt' hiilf-y early sitting of tlio Supreme Court was continued yesterday before Air J ustice, Chapman. INVOLVED NATIVE CASE Wet ini Rikirnugi and others proceeded- against the East Coast Commissioner (Thos. A. Coleman) ior (a) discovery in respect to the matters and things mentioned in paragraph 3 of statement of claim; (li) th-.it accounts ho taken under the direction of the Court as Lo all moneys received for or on nccount of the land mentioiied in the statement of claim by the defendant or by himself as Commissioner in relation thereto; (c) an order or decree that- the balance which may'bo found to be. payable in respect of the said ‘land, or incidental thereto lie paid into the Court, to ho distributed*as the Court may direct. Air. (I. Hutchison appeared for plaintiff and Air M. D. Bell, with him Messrs C. A. Do Lautour and J. 4V. Nolan, for the defendant. STATEMENT OF CLAIM..... • , Thu statchidht pi"'claim Was as follows: — 1. Prior to the constitution of the East Coast Native Trust Lands Board, the Native Land Court ascertained the owners according to Native custom of the Alaraetalm Block, containing about 6,703 acres, to bo the plaintiffs and others. By subsequent Order the- same Court partitioned off a portion of such block, containing about 1,020 acres, as representing the interests of such others (who had sold to the Crown), leaving the plaintiffs (to the number of 165) as tlio owners of the remaining portion containing 5,082 acres 2 roods and 2 perches, and known as Afaraetaha No*. 2A, sections 2 and 3, being the land hereinafter referred to as “the said land.” 2. By Order-in-Couned, dated March'l9th, 1903, James A 1 aefarlane, John Alfred Harding, and Walter Scrimpton, wore appointed as the East ‘Coast Native Trust Lands Board, and they were constituted a body with perpetual succession and a common seal. _ 3. By operation of the East Coast Native Trust Lands Act, the said land became, on tlio appointment of the Board, vested in tlio Board for an estate of fee-simple in possesion, subject to the trusts affecting the same. 4. The said land was nofsubiect to any mortgage to the bank as referred to in the Act. 5. On or about.-tlio 10th day of August, 1904, the Board' received the sum of £4,066 2s as upon the sale „ot the said land; 6. On tlio coming into operation of Section 22 of tlio Maori Land Claims Adjustment and Laws Amendment, Act, 1906, the Board was dissolved, and John Alfred Harding was appointed Commissioner in succession I thereto. Soon afterwards, upon the death of John. Alfred Harding in 1907 the defendant was appointed Commissioner in succession to him and the Boarcl, and lias since continued and now is Commissioner. 7. The plaintiffs have recently applied to the" defendant for, (1) copies of the minutes of the proceedings of the Board relating to tlio sile of the said land, including the resolution of the Board to sell the said land and the terms of sale, with mention of the members of the Board present at such meetings; and (2) copies of all tenders, or letters or other, communications (whether formal or otherwise) as to tendering or. offering to purchase the 'slid land. The plaintiff's offered, that if in the making of the copies so requisitioned there Would be any expense which the .defendant might consider should be defrayed by the plaintiffs, to pay such expense, but the defendant has refused to give the information sought. The defendant has rendered an account to the plaintiffs of the receipt of the purchase money of the said land as received (£4,068 2s) and an allowance for interest up to the 31st Alarcli 1907, (£498 15s 5), and showing deductions (amounting to £354 Is, some of which the plaintiffs object to), but the defendant has refused to pay the balance or any oilier amount-' to the plaintiffs or any of them. Wherefore the plaintiffs ‘ ■claim : (a) Discovery in respect' to the several matters and things mentioned in paragraph 7 hereof, and in respect to’all other matters and dealings by tlio Board or by tlio predecessor of the defendant or by himself as Commissioner in relation to the said land ; (b) That accounts be taken under the direction of the Court as to all nionovs received lor or on account of the said land by the Board dr by tlio predecessor of tlie defendant or by himself as Commissioner in relation thereto- (c) An order or decree that the balance which may be found to be payable in respect of tlio said land or incidental thereto bo paid into Court to be distributed .as the Court may direct; and (d) Such further or other relief as, in the circumstances, may be just. STATEMENT OF DEFENCE. The statement of defence may bo summarised as follows: An admission of the material, allegations contained in the statement of claim except that it was alleged tlie refusal to make the discovery sought was justified at law. Further, tlie defence-was that a Validation Court bad by various Acts of Parliament been constituted a Court witlr exclusive jurisdiction to deal with the various blocks, including that in question, in this action, which bad been brought under the East Coast Trust Board by tlie Act of 1902, and that the adjustment- of burdens, not only on account- of the debt by tlie N.Z. Land Settlement Company to tlie Bank of . New Zealand, but also of tlie liabilities incurred by Messrs Carroll and 4Vi Pere in connection with East Coast lands generally, was required to he the subject of a claim to be drawn up by tlio Validation Court and presented to Parliament not later than the Ist of August, 1909. Furthermore,, as to tlio monies admitted to bavp been received from tlio sale of land which was the subject of the present action, that the Boarcl bad disbursed tlie whole . of _ such monies in payment of liabilities incurred in the general administration of the trust) and that consequently the defendant was not in duty called upon to render any account to the plaintiffs in the present action. OPENING FOR THE PLAINTIFF.

Mr.-Hutchison, in opening, put in a list of original owners, a list of owners who had sold to the Crown, a list of the shares of those who had sold to the Crown and an order of the Native Land Court giving 1600 acres to the Crown. TliCSe documents were admitted. It remained for the plaintiffs to prove a list of the remaining owners. Beyond this, correspondence between the plaintiffs’ solicitor and the Commissioner was put in, and admitted. It disclosed the points at issue, as to the discovery sought. EVIDENCE FOR PLAINTIFFS. John Brooking, for 27 years Registrar of the Native Laud Court, was called and said that during his service he Ind become acquainted with many natives, both personally and by repute. Had seen the Court records regarding the sale by the owners of part of the land in question, lie had prepared a list of the owners who had not sold to the .Crown. The list was admitted by Mr Bell subject to any objection that might be raised as to its admissibility. MR BELL'S ADDRESS.. Mr Bell said .the case was entirely one of law. The Supreme Court had no iurisclictlon. The jurisdiction had been given by Parliament to another Court—the Validation Court. Before 1892 a company was formed in Auckland with a scheme to

* have Native land transferred to it, tile Natives to receive shares in the company. The company found the the money for development. A largo number of blocks in the district were taken into the company. There were some recalcitrants. Some of the Natives did not relish taking their, shares which-were found unsaleable. The company borrowed money from the Bank of New Zealand. The company finally failed for about £IOO,OOO, and the bank took over the company’s properties. Some <«f llicso had hid their titles made legal and others wero'just in process of being completed. The native owners of the completed titles objeted to the sale by the hank, but the bank sold the properties and bought them in. In February 1902 a deed was executed by the bank, Mr. W. L. Rees, and Messrs Carroll and AVI Pore. Prior to the making of the deed, meetings of natives were held all over the district, Mr Rees being the head and front of the attack on the bank. Maraetaha was included in tho deed in the schedule of doubtful nr had titles in which interests wore 1 to be acquired. The deed transferred to Carroll and AVi Pore all the completed titles, which' Were then mortgaged back to/.the = . bank. Tho • incomplete titles were to he dealt with similarly as opportunity offered. Carrol! and AVi Pere were to work tho properties as trustees. Soon after the making of the deed the hank brought before the Validation Court a number of the incomplete titles in the name.of Carroll and AVi Pore, Maraetaha being of the number. The first block brought into tlie Court was Paremata, the owners objecting. Subsequent to 1892 Carroll and AVi Pere incurred certain liabilities on behalf of the whole. Paremata was one of the first to recover from the trust estates as a whole. Paremata was one o ftlie first properties sold. Carroll and AA r i Pere had disappeared and their place in the matter was taken by defendant. The defence was that the whole of the money mentioned had been expended by the East Coast Native Trust Land Board in general liabilities of the trust. It was impossible- for the funds of a specific part of the whole trust to be divided among the owners of the part. AVhen the Board disappeared and its-place taken by tho Commissioner, no money was handed over. The bank had been paid in full by the Board, which had also made other payments. ■_ It would bo impossible to ascertain the funds of a part of a trust, the funds of which had been expended on general trust liabilities" One portion of Maractaha had been sold to satisfy the bank and another portion was sold to cover the expenses of tho general trust, and the owners had stiTi left a large amount of land. EVIDENCE FOR THE DEFENCE A\’. L. Rees, barrister, said ho had been practising in Poverty Bay since 1577, ami since that date lie bad engaged .in most of the native, land litigation which took place in the district. Drew up the papers for the New Zeal and Company, which was not a success. AVhen the company "was formed into the East Coast Native Land Settlement Company there was a'capital of £85,000. The company spent large sums of money in getting titles and „in 'developing the land. The deed of 1892 was correct in its statements. At the meeting of natives prior to tho making of the deed there was much discussion but no ultimate dissent. Was instrumental in tlie making of the Native Lands ALilidatioii Act of 1893.. The Paremata estate was the first prpoerty wjth incomplete title, to bo considered. •AVitness appeared on behalf of Carroll and AA i Pere. A decree was made in the case of the Paremata estate, and and the decree was made a model for all decrees in estates* in the trust of Carroll and AVi Pere. A number of. the trust’s lands wore put through the Court. Witness was solicitor to the •trust of Carroll and AVi Pere, and was. solicitor after 1902 as far as Carroll and AVi Pere bad business with the Board. Remembered tlie two deeds regarding the land in questibn, witness acting for Carroll and AA T i Pere. Remembered the Paremata decree of June Bth 1896 (original produced), validating the agreement of 1892. Remembered also tlie two decrees made regarding the land in question. In all decrops it was stated that, they were made with the consent of all parties. AVas the attesting witness to various signatures in deeds of December 1903 and April , 1901 in regard to the land in question. Carroll and AVi Pere incurred very heavy expenses in connection with the land. Much was spent in litigation. They were the target for everybody to fire at. By Mr, Hutchison: The agreement of 1892 was really the constitution of the Carroll and AVi Pere trust. In 1902 Carroll and AVi Pere were interested as trustees'in the realisation of the land, but not personally. Tho large expenses incurred had been mostly paid by 1902, but they wore interested in the. sales and leases to the extent that certain liabilities jud still to be paid. In the agreement of 1892, Maraetaha was mentioned in the schedule of bad or imperfect titles, or titles where the interests - - were doubtful. The block included all Maraetaha except the land of Mr AVoodbine-Johnson. This statement was challenged by Mr. Hutchison, who pointed out that Mr Rees was evidently not acquainted with the names of the various blocks. Thomas Alexander Coleman, defendant, said lie was the first secretary of the Board and had been secretary to the late Commissioner. Had kept the books of the Board and the Commissioner. AVhen the Board came into being they had no money. They had to take up liabilities aggregating over £21,000, apart from £159,029 owing to the bank. The Board was formed in'l9o3. The Board’s assets were the properties secured to the bank but not sold, and a number of other properties with complete titles. There was live stock on some of the estates but the Board could do nothing with it. The land in dispute was outside the bank security. Under tho Act of 1906 the Validation Court was called upon to prepare a pcjieiitp, but tlie time for doing so expired in the previous- year. Had prepared accounts of the land and submitted them to the Judge of the Validation Court, who had been too busy to date to meet witness to formulate a sell-

By Mr. Hutchison : Submitted accounts in July last. An interim report had been submitted, but not such a one as demanded by the Act. The accounts submitted were lull ones of receipts and expenditure on each block. The account forwarded to counsel was similar to the one sent to the Validation Court Judge. The onl v further in formation to lie got would bo details of the various amouiits paid to the Bank, and the Carroll-AVi 'Fere Trust and other expenses. In the yeitr 190-1 the Board had a credit of £SOOO. The assets at present were about £200,000.

Re-examined: Had not gone into 1 hypothetical equities, beyond the. di- , ructions of the Validation Court. ; Henry Lewis was called to testily ■ to a signature oil one of -tlio deeds. , Mr Bell put in the Validation Court’s approval.of tlio deeds ol 1.903. FURTHER EVIDENCE FOR PLAINTIFF. Air. .Hutchison asked leave to call further evidence. Ho wished to prove that the land was outside tlio terms of tho Validation Act of 1903. His Honor said all he would do when lie heard the evidence would be to suspend the present, action to enable counsel to move in another Court for a writ of prohibition. Even then lie thought ho might be going too far. John Brooking gave evidence that the.title to -Maraetaha was a grant under the Poverty Bay Grants Act and that the titles to Alaractalia 2 niiil 2A were -distinct under the Native Court Act. Tlio owners were not tho same or similar. By Mr Bell: Maraetaha- was Air AVoodhinc-Johnstone’s land. Never knew of a block 'entiled Alaractalia No. . 1. - AIR. HUTCHISON’S ADDRESS. ‘ Mr. Hutchison, in liis argument on tho whole case, submitted that the case for tho defence, as presented by Mr. 8011, was subject to tho fatal objection that it left out of count the cardinal fact (which was admitted' on tlie pleadings) that this particular block—Alaractalia No. 2A, sections 2 and 3 —was not subject to any mortgage, and therefore could not properly be sold by the Trust Board, and thus be made subject to the liabilities that other blocks were under. Tho defendant’s case, as disclosed by tlio pleadings, assumed —in opposition to /this view—the right ~of the Trust Board to dispose of the proceeds of the block, not only in paying, or assisting in paying off, the debt to the bank, but in also paying, or assisting in paying, the liabilities of what was known as “the CarrollAVi Pore General Trust.” AVhat this Gar roll-AVi Pere Trust covered was not generally known, hut was said to include various expenses incurred by them in litigation and other expenditure of which there was no particular information, but which the plaintiffs contended did not- concern them. As to this Carroll-AVi Pere Trust, now sought to be made a burden on various blocks (including the Alaractalia No. 2A, sections 2 and 3), it was remarkable that the • Act of 1902, constituting tlio Trust Board, and regulating its powers, contained not one word that could be construed into a reference to that particular, the Carroll-AVi Pere Trust. The Act throughout was confined to machinery for paying off tlio debt to tho bank. The. first reference to other claims than the .bank’s was in the Amendment Act of 1906 — two years after the money in tins case had been received 'by the Board—-and even then, supposing that such reference to “other claims” did include the Carroll-AVi Pere Trust —tlio liability was limited to three classes of securities—(l) General securities, (2) specific securities, and (3) “added” securities, the latter being a form <>f security contemplated by tlio Act of 1902, under certain circumstances which, however, did not apply to this case, as it was not contended by the defendant that the land which was the subject of tho present- action had at any time been “added.” The admitted fact that this block had never been subject to mortgage excepted it from the liabilities not only of tho Carroll-AVi Pere Trust, hut also, the liability to tho bank. As t-o the contention of the defendant’s counsel that,tlie accounting by the defendant was exclusively to tlie .A 7 adulation- Court, the reply of the plaintiffs was, in effect, that the Trust Board, having no right to sell—although it had sold—sufficiently distinguished the block in question from otlior blocks referred to in the evidence, and. that this distinction saved it from being thrown into tlie hotchpot of the Validation Court, and so made subject to contributions towards the debt of the hank, the Car-roll-AVi Pere ,Trust, and other charges, beyond the legitimate expenses of management "of this particular property. It was the unfortunate fate of many blocks—Paremata for instance —to be made subject to spell chargeST but that was because the Paremata and-the others in the same category had been subject to mortgages to tlio bank —the point which distinguished Alaractalia No. 2A. sections 2 and 3, from Paremata and such others in the same plight. This distinction left Alaractalia No. 2A, sections 2 and 3, to he dealt with by tho Supreme Court iff the ordinary way. ias ‘the plaintiffs now sought might he done, instead of having it relegated to- the Aralidation Court, which, v by tho terms of the Act of 1906, empowered to deal with the subject, independently of the rules either of justice or equity as administered in the ordinary courts of law. JUDGMENT RESERVED. His Honor reserved judgment. N A CASE SETTLED. In the case Haraina Rarekaipako v. John Coleman and AVm. D. Lysnar, Ur. Bamford, for plaintiff, announced that tho case had been settled. Mr Lusk, with whom was Air Stock, who appeared for tlio defence, concurred. ' , - , • Mr Bell said he '.appeared for tlio third party and did not recognise any settlement. . His Honor made a note of Air Bell s statement.