BARKER v. REES

Poverty Bay Standard, Volume X, Issue 1026, 21 January 1882, Page 2

BARKER v. REES

Verdict for Barker. That the Whataupoko Block will, in a week or two be submitted to public auction, may now be looked upon as un fait accompli. When about last March Mr Percival Barker, the mortgagee, in pursuance of the powers vested in him under and by virtue of a deed of mortgage, proceeded to realize upon the security in default of the payment of interest and principal moneys, the mortgagors, Mr W. L. Rees, Wi Pere, and Riperata Kahutia, the trustees of the -Native Grantees, opposed the sale. The amount due by the mortgagors to Mr Barker was about £32,000. The mortgage fell due last February. The area of land comprised in the security was represented by 12,400 acres of the whole block. The original action was commenced in the Supreme Court, by Mr Rees and his co-trus-tees against Mr Percival Barker. The plaintiff issued a writ against the defendant and filed affidavits praying that the defendant Barker might be restrained by Injunction in the Supreme Court from proceeding to sell any portion of the Whataupoko Block, by or under any power conferred upon him by the deed of mortgage, and from offering or advertising the property for sale until permitted to do so by order of the Supreme Court. That accounts should be taken by the Registrar of the Supreme Court, and that the defendant be ordered and decreed by the Supreme Court to assist the plaintiffs in bringing the title to the Whataupoko Block under the Land Transfer Act, and further that the defendant be ordered to withdraw a

certain caveat lodged by him against the plaintiff’s application to bring the land under the said Act. And that the Court should order such other relief as it deemed meet. Simultaneously with the issue of the writ by Mr W. L. Rees, on behalf of himself and co-plain-tiffs, affidavits from them were filed in the Supreme Court. These averred, inter alia, that the arrangement for purchase and sale of the Whataupoko block entered into between the grantees and Mr Barker was one of an entirely equitable character, and solely entered into to enable the property to be realized upon to the greatest advantage, so that Mr Barker might be enabled to sell out without loss, and a profit, and that any surplus might remain for the Maori grantees, that everything done reference to Whataupoko was through the advice and instrumentality of Mr Barker and his solicitor. Further, that it was never expressed or intended between the parties that the mortgage deed was to be construed literally—in fact mean what it stated. That it was never understood between the parties that the power of sale was to be enforced. That power, it was alleged was given at Mr Barker’s request, and solely as

an interim security, and that the defendant agreed at all times to a continuance of of the mortgage, and to allow the plaintiff to make a perfect title, in order to be able to sell at the best, advantage. The affidavit set forth that if Mr Barker was allowed to enforce the power of sale under the mortgage deed, many of the grantees would in consequence thereof be exposed to the absolute loss of their intewhile they would receive no benefit, and be responsible for the expenditure incurred under the agreement with Mr Barker, in order to give full value to the land. Upon the sworn affidavit, filed on the 25th March, 1881, of William Lee Rees, Wiremu Pere. and Riperata Kahutia, that is the position in which some of the grantees of the Whataupoko block for whom those three parties were trustees would be placed in if—according to the sworn testimony of the trustees themselves—Mr Percival Barker were permitted to exercise the right of sale contained in the mortgage. What is the position of the case to-day, when our readers will pick up this paper? The Court of Appeal—Sir James Prendergast, the Chief Justice of New Zealand, and the four Puisne Judges—the highest tribunal in the land, has declared that Mr Percival Barker is by law and equity entitled to put into operation the powers of sale conferred upon him by the mortgage deed. Nay, more—in delivering judgment in the Court of Appeal the five Judges were unanimously of opinion that even admitting every allegation put forth in Mr Rees’ affidavit to be true — and surely nothing more than this could be desired — even then remarked their Honors, the Court could give him no relief. The two issues upon which it will be remembered in the trial at Napier, the jury disagreed, were not their Honors decrede material to the cause of action. “ There,” as Mr James Smith said in his able and memorable address to the jury in the trial in Napier, “ is the mortgage deed—the written evidence—that cannot lief And that is the verdict of the Appeal Court. Altogether it will be satisfactory to the district tc know that what Mr W. L. Rees one time threatened, namely, to take the case to the Privy Council, is happily averted. We say happily, because, under the present circumstances,the day cannot be far distant before the block will be thrown open for settlement, and that splendid track of country stretching away from our very doors will be made the site of the homes of hundreds of thriving families. Looking at the matter from the point of view attached to the legal surroundings, we find that although discomfited by the action taken by Mr Rees to stay the sale, Air Barker was by no means defeated. He was determined to prosecute his action, without delay, feeling doubtless that he had right upon liis side. It should be premised that as issues of fact were in dispute between the parties, in the case of the application for the injunction made by Air Rees, and which application came on for hearing before the Chief Justice, Sir James Prendergast in Wellington, in April, 1881, it was decreed that the whole question should be submitted to a jury. lienee the trial in Napier. One of the questions of fact was that Air Rees swore positively that Air Barker had agreed not to enforce the power of Bale. Mr Barker’s testimony was of a character diametrically opposite, In consequence of the verdict arrived at in Napier, Air Barker appealed. The Supreme Court granted Air Barker a rule nisi for a new trial upen the two issues, not determined upon by the Napier jury. That rule was afterwards made absolute. Air Rees appealed, and threatened if his appeal were not successful, that he would appeal still further to the Privy Council. Then came in a species of legal diplomacy which it is difficult to characterize. Let us view the position : If Air Rees lost the appeal he would, from the superabundance of misdirected energy that he is said to possess, have carried out his threat in its entirety, and have appealed to the Privy Council, then Mr Barker might have fairly exclaimed —Whatanpoko au revoir. There was nothing to prevent Air Rees from so doing in the then state of the action. That gentleman, doubtless, greatly to the satisfaction of his opponents decreed otherwise. For some inscrutable reason his appeal was only mildly opposed. In fact, he won his appeal and lost for ever his chance of carrying on the matter to the Privy Council. Dealing with the question, as our endeavor is, purely on public grounds, there cannot be an individual in the district, who has its welfare at heart, that should not rejoice to think that that valuable block of land crying out to be settled upon, has escaped the throes of the Privy Council. Air Barker’s right to sell under the deed of mortgage having been upheld by the Court of Appeal, he then had to go through certain legal forms to have the original injunction removed, in order to be enabled to realize upon his security. After twelve months’ litigation, the greatest burden, however, of the expense to be borne by those who generated it, Mr Barker finds himself to be in the position he claimed to be in all along.

We have endeavored to deal with the question in an impartial manner. No vindictive spirit has guided our pen. It is not true manhood that gloats over another man’s misfortune. It is in sorrow, not in anger, that we take a retrospective view of Air Rees’ past actions in regard to the Whataupoko Block. Let him and his supporters ask themselves deliberately what good they have done ; what good have they done themselves or any person connected with them. Litigation stared Barker and Ale Donald in the face four years ago in connection with this very block. Litigation has, Shylock-like, demanded its pound of flesh, and the lawyers at least on the winning side, have been more fortunate than Shakespeare’s ancient Hebrew. Mr Barker has had able counsel watching over his interests. Never was it more clearly depicted that the race is not to the swift, nor the battle to the strong. The railway speed characteristic of Air Barker’s opponents could not last. “It was the pace that killed.” With such men as Messrs Smith and Anderson of Dunedin, Chapman and Fitzgerald of Wellington, Wilson and Cotterill of Napier, and H. J. Finn, of Gisborne, no client in the Colony could have better legal aid. And the result proves the fact. We write in the interests of the whole district—and we are glad to be able to state that the victory achieved without weighing for a moment the personal interests of either Air Barker, or Mr Rees, are such as point unmistakably in a direction highly advantangeous to Poverty Bay.