SALE OF FOREST

Hokitika Guardian, 5 April 1930, Page 6

SALE OF FOREST

CLAIM AGAINST CROWN

WELLINGTON, April 1

A further phase of the case Raynor v. the Crown came ho fore the Court of Appeal to-day, when the Court hoard argument on question of law arising out of facts and to be determined before trial.

Frederick John Raynor, of Auckland,' dental surgeon, in January, filed a petition of right under the Grown Suits Act against the Crown, alleging that, by written agreement dated October llth. 1928, made with the Commissioner of State Forests, tic agreed to give, and the Commissioner, acting on behalf of tlie Crown, agreed to take, an option to purchase forests of timber on certain freehold and leasehold lands containing approximately 5110' acres, known as Tauri-Tutukau forests, at a consideration of £3S,(MX) for an option, and, in the. event of the option being exercised, tlie price of tlie timber to- bp ascertained and paid in a manner provided in the, agreement, credit being given for tlie consideration paid for the option. He further alleged that the sum of £35,000 was payable on October llth. 1928, but had not yet been paid. Raynor asked that right- be done in the matter.

The Solicitor-General in turn filed, a plea to this petition, denying the existence ,of any valid agreement, and. alleging that, at the time of the ne-

gotiations between the suppliant and the Commissioner, the former’s title to the lands in question - was not in order ; and that, even if it were pro-, ed that the agreement as alleged had been entered into, it was beyond the authority of the Commissioner and therefore not binding on the -Crown.

The case was thereupon set down for trial; but Mr Justice Ostler made an order for argument before the Court of Appeal of certain questions of law arising out of facts. These questions, as follow, are being argued to-day: (1) Was the agreement referred to in the petition ultra vires on the part of the Commissioner of State Forests? (2) Did tlie fact of the land being subject to part XI.II of the Land Act, 1924, and section 74 of tlie Native Land Amendment Act, 1913, or the fact that suppliant was not the registered proprietor of the whole of the land, but held a. portion under option to purchase, entitle the Commissioner to decline to be -hound by the agreement?

For tlie suppliant, Mr A. Gray, Tv.C. and Air H. V. James, . and for the Cron, Air A. Fair, K.-.C. . (SolicitorGeneral) and Mr, A. F ; ,,. Currie, are appearing. One the Bench are Justices Herdman, Reed, Adams, Ostler and Smith. .... .

Air A. Fair, K.O. far., the. Crown, said that although £3SJ)f)U. was recited- as being payment i.JVp* the option, it was, in I act, part qf.jlie purchase price. The whole transaction was?part ot a scheme for the construction of a railway from • Taupo,. and tlie agreement, if it brut been , entered into, was intended %s(-.jin l ; K iirtp i gipi,l portion of tbc scheme.- (11 1,1 Crown in due course bad bad the yt.itley to the land searched and was ,-not satisfied, and fourteen days after signing the deed declined.* -to got the. transaction. The agreement was drawn up in a very crude form and bad not been given Careful consideration. It was not clothed in cb'rke'ot,.language.. It originally was drafted'iry Air Skelton. oi Auckland, solicitor for the suppliant, and submitted to,,be placed bclore Cabinet in order (hat the terms* of purchase might be approvNck prior ,to the Commissioner entering, into an agreement. At no time Avas there-writ-ten authority for payment by the Crown of this money ou£of unauthorised expenditure. The.ag-i-ee.iiient Avas signed by-the HoivK. S. Williams, acting in the absence of the Commasioncr of S f, ‘e Forests (the Hon 0. .1. Hawke.,;. Yi'ii.i relation to the first que-.lum to be answered by the Court there were two submissions by tlie Crown : (I; 1 ,’.e Forests Act, 192.1-22. did no authorise'the., purchase by the Commissioner from a private person of an area of standing tiipber in order to establish a forest entirely independent of already existing State' forests. (2) The Act authorised the acquisition of private land only for a - purpose incidntal to or in connection with already existing State forests, no provisions specifically authorising the ncquisiton by purchase of an, independent forest of standing timber of large acreage, l.f such power existed it was a complete change of policy on the part of the Legislature. It was beyond argument -that no such power existed prior to tlie passing of tlie 1921 Act, and if if existed it not only was new. but interfered with the oi 1 private land. If the contention of opposing counsel was correct it gave power fr trading in State forests, but if such power was- intended it would be clearly shown in the Act, whereas it was not. He also submitted that even if the statute conferred power to purchase or to take private forests the Commissioner bad no power to bind the CroAvn to nay moneys unless such moneys wore appropriated by Parliament and provided for out of unauthorised expenditure. It was an admitted fact that no moneys were at any time appropriated by Parliament -for the purchase of this forest. ■ At this stage the Court adjourned till to-morrow.

CLAIM AGAINST CROWN

WELLINGTON. April. 2

Tn the Appeal case. Raviier v. the Crown, continuing the case for the Cmwn. the Solicitor-General cited authorities in support of his contention

that, before judgment could be given j

in favour of suppliant, some authority must have been conferred by Purlin-, meat for payment of the amount alleged to be due under the agreement. The money could not be made available unless it had been appropriated by Parliament. A, servant of the Crown could not bind the Crown to large, unauthorised payment. Air Currie, in support, dealing with tiie second question for the opinion of the Court, submitted .that.,- of the- laud was found to be subject to Part XIII of the Land Act, 1925, then the purchaser on open contract for tlie purchase of freehold land was not hound by that contract. The Crown, in like mauler, was not bouikl by tlie contract before the Court. The restrictions imposed by Part XI.JI of the Act would limit tlup field in which the Crown could dispose of the land. The fact that the land would come into the bands of the Crown would not free it from these restrictions. Dealing with the restrictions imposed by Section 74 of the Native Land Act, 1924, Mr Currie contended they were more stringent titan those imposed by the Land Act. The effect of these restrictions also entitled the Grown to rescind. Furthermore, suppliant himself held only an option to purchase in respect of portions of the land. This also freed the Clown from any liability under tlie contract. The contract was not a,n open one, but was expressly made “subject to all titles being in order.” ’the requirement that the title should be in order vas a condition precedent, to any binding effect upon the ’’Crown. In addition, the 'option .was not '. ope which suppliant himself could enforce; for it would bring suppliant '--.more' land than lie was entitled to held under the Land Act, 1924. Again, the provisions of tlie Native Land Act, 1909, made any enforcement of that option impossible, for tbc purchaser would render himself liable to penalties under the Act. The legal argument is unfinished.