SUPREME COURT.—CIRCUIT SITTINGS.

New Zealand Times, Volume XXXIII, Issue 5535, 23 December 1878, Page 3

SUPREME COURT.—CIRCUIT SITTINGS.

Thursday, December 19. (Before bis Honor the Chief Justice.) WELLINGTON COETOHATION V. PORT. This was a suit brought by the plaintiff to have a certain deed ef lease rectified. Defendant purchased at public auction on sth June, 1877, the lease of certain sections of the Town Belt, viz., sections 4,6, 44, and 46, the three first of which were included in one deed of lease. The form of lease prepared was intended to be used for each separate section, and the inclusion of three sections in one lease was (as alleged) done at tho request of lessee, to save him expense but not to vary the terms of the contract in regard to the several sections. This deed of lease, which was not executed by defendant until April, 1878, contained a provision enabling the Corporation to determine the tenancy on giving the lessee 28 days’ notice of their intention so to do, the lessee having the option, in the case of the lessors only requiring a part, of surrendering tho whole of tho land demised under the lease. On Ist June, 1878, the plaintiffs intending to act thereon under the power in that behalf°inteuded to be reserved to them in and hy the said lease in respect to each of the said lots, caused the Town Clerk to give notice of resumption of possession by tho Corporation of section 4 on Ist July. Defendant on Cth Juno replied that in terms of his lease he elected to surrender the whole o! the three sections mentioned in tho (case, and asked the Council to recoup him the money ho had laid out on tho section. On the 18th June tho Town Clerk replied that tho Council refused to recognise Mr. Port’s right to relinquish any other section but No. 4, and would consider his claim for a refund of his expenditure it ho sent in particulars. Mr. Port insisted upon ' his right to relinquish all tho sections, and refused to allow the lease to be rectified by tho excision

of section 4, and still seeks to take advantage ■ of the mistake of plaintiffs in having neglected • to set out more fully the contract between the parties in regard to each of the three sections, for the purpose of compelling _ plaintiff to accept a surrender of all the sections, —wherefore the plaintiff claims that the deed of lease may be decreed to be rectified so as to carry out tbe intent and meaning thereof. Defendant pleaded there had been no mistake^ on his part, as he executed the lease in the belief that it applied to the sections included as a whole, and not separately. Tho sections were not included at his request, but at tho direction of the lessors. He had quitted and delivered up possession of the land on the 6th June, 1878. Mr. Travers appeared for the plaintiffs; Mr, Ollivier (with him Mr, Chapman) for the defendant. Robert Port was called by Mr. Travers, and gave evidence as to attending the sale and purchasing the sections, and the subsequent execution of the lease. When he executed the lease he had no knowledge that the contract was varied in any way by the lease. To Mr. Ollivier : I understood the terms of tho lease to mean that the whole transaction was one, and that if I did not pay rent on any one section any could be seized upon for the whole rent due. I made no objection to the lease as drawn up. After I had purchased the property I saw an advertisement requesting all purchasers to come and sign the lease. The advertisement was signed by Travers and Ollivier, as solicitors for the Corporation, and there was also a special notice sent to me. After repeated notices I went down to sign the lease. The sale was not completed when I signed the printed conditions. I signed merely to get other persons to buy. One section was knocked down to mo although I did not bid for it. That was one of these three sections. I think there was something said by the auctioneer or by Mr. Travers, who was present as City Solicitor, to the effect that purchasers of more than one lot could take them in one lease if they thought fit. I gave no special instructions in respect to the preparation of the leases for the sections I bought. I did not say one way or the other as to whether the one lease should or should not include all three. When I came to execute the lease X found that all three were included in one lease. No explanation of why that was done was given me at the time of the execution of the lease. I entered into possession of the property immediately after the sale, but from the 6th June, when I gave notice to the Council that I would give up the whole, I have ceased making use of the sections. I had fenced and improved some of the sections. The first thing the City Council did after I purchased was to take a road, without formally resuming possession and without asking my permission. To Mr. Travers: I was amongst the first purchasers at the sale. I took 4 and 6. I did not myself ask you it both could be included in one lease to save expense. You volunteered the statement. I never heard of any discussion in the City Council about the question of separate leases for each section. I don’t remember seeing anything in the papers on the subject. I did not object to signing the lease] because I included all the sections. X was content with what was said at the sale on the subject. Section 44 was not interfered with by the road. Section 44 was rather dear. Had it been cheap still I might not have stuck to it, because I was bothered about it a good deal. Mr. Travers, as a witness, said that it was first in reply to Mr. Port that he had stated at the auction sale that more than one section could be included in the one deed. Then it was stated generally that one lease would bo made to suffice for all the sections. This closed plaintiff's case.

Lewis Moss was called for the defence. He stated he had been for some time and still was a member of the City Council. After the sale of these seefcionsheremembered being called upon, in company with Mr Mills, by tho City Solicitor, to countersign the batch of leases. The whole of them, or a large number, were executed together at tbe one time. Charles Christie Graham, Town Clerk, said; I became Town Clerk on the Ist January,

1878. Ido not find in the records of the i Council any entry o! the execution of the Town Belt leases. The great bulk were all executed before my time of office. On these conditions of sale (produced) I See the name of Sutherland as the purchaser of seven sections. I believe he is now dead, [Admitted by Mr. Travers that the Corporation, in Sutherland’s case, executed one lease for all the sections. Sutherland did not execute counterparts before death, and afterwards his representatives requested that a separate lease should be made for each section. In other cases, the Corporation having executed single leases for a number of sections, the lessees not having executed the counterpart, it was resolved in consequence of Mr. Port’s action that A. seDarata.-lean*-•jiro’xiiti-.bc-cxecntecl in ot each section. The lessees were not charged anything additional.] Examination continued : I have been unable to find a letter from the City Solicitor to the Town Clerk, requesting the sanction of the Council to the preparation of the leases. At the ordinary meeting of the City Council on the 21st June, 1877, a minute was put upon the hooks to the effect that a letter was received from the City Solicitor, asking that the leases might be executed ; that tho Mayor refused to witness the affixing of the seal when it appeared to be the wish of the Council that the seal should be affixed In the presence of two Councillors.

Mr, Travers : At the time I communicated with Mr. Port with reference to the surrender of section 4 I was not aware that more than one section was included in the lease.

Andrew Wylie stated: In 1577 I was a clerkof Travers, Ollivier, and Co.’s. I engrossed these leases—filled up the printed forms. They were all done as one job, but extending over some little time. The charge for a lease for a single section was to be less than that for the leases containing more than one section, la the one case it was to be a guinea and a half, plus the stamp duty, and In tho other two guineas, plus, the stamp duty. There was a notice published in the papers requesting lessees to attend and execute the counterpart. A slip of the advertisement was also sent round to each individual. Very few came, and the leases were taken round for execution. Such as remained still unexecuted were taken rouud in 1878. Mr. Port executed his lease after this. This was the case for the defence. It was then agreed that as the issues involved matters of law as well as matters of fact, the Judge should not answer them until after argument, to be heard on plaintiff moving for a decree; case to be set down for first sitting in banco after the next circuit sittings. This concluded the business of the Circuit Court. ______