THE GREAT PARAMATA CASE.

Poverty Bay Standard, Volume I, Issue 105, 12 April 1884, Page 2

THE GREAT PARAMATA CASE.

SUPREME COURT, WELLINGTON.—IN BANCO. Thursday, March 27. (Before His Honor Mr, Justice Richmond.) Wl TE TUBE AND OTHERS V. NEW ZEALAND LAND SETTLEMENT COMPANY. The New Zealand Land Settlement Company purchased land from the plaintiffs and others—a piece of land in Poverty Bay. A memorandum of transfer was executed, in which the consideration was expressed to be £9,000 paid to the plaintiffs. At the time of the making of the transfer the transferors were owners according to the native custom of the land. The statement of claim made allegations of fraud against the defendant company, which were negatived by the jury ; only £9OO was paid. A collateral covenant was made between the company and the transferors, which, after reciting the above transfers, the company covenanted with a committee of native owners, and the vendors to utilise the law and pay the committe on behalf of the owners two-thirds of the profits of the land ; to convey certain parts of the land to the committee for the use of the vendors, and to sell other parts : to re-invest the sum of £B,lOO part of the £9,000 in the purchase of shares of the company, and that the shares purchased should enable the committee to receive from the company, upon surrender of a proportionate number and value thereof, a sum equal to twothirds of the net proceeds in each year deducting from the proceeds a sum of £9OO paid to the vendors. Other provisions were made relating to the land and shares. The transfer was produced before the Native Lands Court, and that Court, having made the statutory inquiries, made a conditional order for the vesting of the land. The deed of covenant was not brought in any way before Native Lands Court, which was not informed of its existence. The £9OO was paid by cheques, which, at the time of the inquiry in the Native Lands Court, were not yet cashed, and which had an endorsement which precluded the possibility of its being cashed. This action was to set aside of declare void the memorandum of transfer, on the ground of fraud, illegality, and contravention of the Native Lands Acts.

The jury found for the defendant, and the Judge gave judgment for the defendant, but leave was reserved to move for judgment on the facts found by the jury and admitted, and on the evidence ; the motion to ba made at the first sitting in banco after the long vacation. The first sitting after the long vacation was on 12th March. On 11th March notice of motion was given to move on the 19th march, that the judgment be set aside and judgment be entered for the plaintiff on the findings and admissions and on the evidence on the several grounds, including the following, namely:— That payment of the purchase money was not made in terms of the purchase. Mr. Izard, for the defendant, objected that the leave was to move at the first sitting in banco, the plaintiff is now too late. McLean, for the plaintiffs, argued that the filing of the notice in time saved the time limited. The following rules were cited :— 280, 281, 282, 392. His Honor, without deciding the case, decided to hear the argument, reserving the prel i minary object ion. Mr. McLean : The Native Lands Court was misinformed in two material particulars—first, that the consideration was the £9,000 mentioned in the memorandum of transfer; secondly, that the consideration money was paid. The natives can only sell- for cash ; hero the sale was for the inalienable scrip. The scrip is fully paid up, and .such scrip is declared by the articles of association of the company to be inalienable. We do not ask to have the order retained, but to have the deed declared void. The present case shows how unfair it may be for the payment to be in shares, because these shares are now below par. Again, part of the consideration (£900) was supposed to be paid in cash. In reality, cheques were given which had endorsements on them, which precluded the possibility of their being paid at the date of the enquiry. Another ground is that the consent of all the owners to the sale was not obtained. That

the transaction was not bona jide, The particulars of the transaction were outside the deed, and were contained in a deed of covenant. That covenant was withheld from the Native Lands Couit. Th# court was, therefore, misled. The evidence shows that all the owners did not consent to the sale on the terms expressed in the conveyance. They would not consent if the whole purchase money was paid at once. This makes the order bad, and without the order the conveyance is void, the land being held under memorial of ownership. The agreement under which deed of covenant is found is illegal in contravention of the native Land Act. Also if the agreement is legal, the deed does not carry it out. Mr. Justice Richmond: That would only be a ground for reforming the deed, The agreement is illegal, because it is not the sort of consideration contemplated by section 59; it contravenes, also, section 60 of the Act of 1873, The deed of covenant is also void, as being a trust for the natives. It was decided in the Pouawa case th.xt such a trust cannot be dealt with by the Native Lands Court. The Court adjourned till 10.30 to-morrow.

Friday, March 28, Mr. Izard opposed the motion for judg. ment. It was the duty of the plaintiff to have proved fraud, if his case rested on fraud, The objections urged are really objections to the jurisdiction, and they ought to have been raised in the Native Lands Court when the conditional order was made. The condi* tional order was not to be obsolute till a lease was surrendered, but now, by the Act of 1882, the absolute order may be made notwithstanding the existence of the lease. The proper course for the plaintiff to take is to move the Native Lands Court to rescind its order, or not to refuse to make it absolute. They can ask for a rehearing under the Act of 1880, sec, 47. The matter is not yet decided. The absolute order is not yet made if application is made, they can show the Native Lands Court that it was deceived, and the Judge would refuse the order. If he said he had no jurisdiction to reconsider the matter, mandamus would set him right. The plaintiff has mistaken his forum. It is contended that the deed iB in contravention of the Native Lands Acti 1873. The Legislature never contemplated that money alone, and not money’s wOrthj was to be the consideration. Payment of money stipulated for means of whatever money is stipulated for shall be paid—that so much of the consideration as is represented by cash shall be paid. It would be unreasonable if the Natives could not part with the land except by a cash payment; it would hamper them in their dealings. Native Landa Frauds Prevention Act, 1883, section 6, fhdwa that the consideration need not be cash. All the particulars relative to the sale were before the court, though it is true that the disposal of the purchase money was the subject of an agreement not now before the court. The purchase money was actually paid. A cheque was given which could have been dealt with by the natives. True, they did not pay it into the bank, but there was a virtual payment. Issue 6a find that the transaction was before the court. It is suggested that thetranaction is one which the Native Lands Court cannot carry out; that it is one to which legal effect cannot be given, as the court cannot make the required endorsement. If the Native Lands Court were to make the final order in such a case, it would be a case of prohibition.

Richmond, J.: If I can see that, ought not I to order the deed to be delivered up ? If I see that the case would be one of prohibition, ought I not to give the relief asked xiow ? Mr. Izard—The Native Lands Court is the only Court to go to in this matter, otherwise this Court would be deciding questions which ought to be decided by the Native Lands Court. The conditional order vests nothing; the order has still to be made vesting the land in freehold tenure. A judicial act has still to be done in which the parties can be heard. Richmond, J.—lf it can be made to appear that the Court would interfere by prohibiting the Native Lands Court, why should it not interfere now ? Mr. Izard—The proper remedy is prohibition. The facts would then be properly brought out, and not be picked out of evidence given on other allegations than those in support of which they are now urged. None of the grounds alleged come within rule 282. Mr. McLean, in reply—Defendants have not suffered by the motion being too late. If the notice of motion had been filed three days earlier the papers could not have arrived here. From the date of the purchate the land will be under the Land Transfer Act, and there carl be no rehearing. Land Transfer Act Amendment Act, 1874, sec, 10. A caveat against bringing the land under the Act cannot be registered, because there is no application. The moment the order is made the land is under the Act. We are entitled to a dearee to prevent this.