THE MOKAU ESTATE.

Taranaki Daily News, Volume LIII, Issue 317, 2 June 1911, Page 3

THE MOKAU ESTATE.

MR. JUNKS' CLAIM. THE LAND OK £IOO,OOO. REMARKABLE ALLEGATIONS. (Wellington Dominion.) The long-continued and interesting litigation connected with the Mokau Estate was revived in the Supreme Court on Tuesday, when the Chief Justice (Sir Robert Stout) and Mr. E. G. Jellicoe (counsel for Joshua Jones) expressed conflicting views as to the power of tho Court to entertain an action in which Jones claims, inter alia, the restoration of the property to him, or in default £IOO,OOO damages.

The plaintiff, Joshua Jones, of Mokau, New Zealand, farmer, had filed a statement of claim, naming as defendants Sarah Jane Lcfroy, of Notting Hill, London, wife of the Rev. W. A. Lefroy; Archibald Bencc Bence-Jones, of London, barrister; Henry Kemp Welch, of Chelsea, London; and Sir Colin Campbell Scott-Moncrieff, of Chelsea, retired colonel, executors of the will of Wickham Flower, deceased; and Hermann Lewis, of Wellington, ex-hotelkeeper. STATEMENT OF CLAIM. The statement of claim alleged that the late Wickham Flower, of London, solicitor, ia the years 1893 and 1804, employed by the plaintiff and acting for the plaintiff, acquired in his own nam« the Mokau Estate, comprising upwards of 50,000 acres, for a term of 50 years at a rental of£lil4 for the first 28 years, and of £392 for the residue of such terra, and became entitled to an equitable lien thereon for £9452 and interest. The lands were of great value, and subjacent to them were the richest and most extensive coal beds in New Zealand.

In 1900, after Flower's death, the executors transferred, under the Land Transfer Acts, 1885 and 1902, the said estate to the plaintiff, and he mortgaged it to them for £17,500 alleged to be due to them as executors of the will. The plaintiff covenanted to pay them at the office of Flower and Flower, London, £17,500 on November 30, 1900, with interest at 5 per cent. The mortgage contained a condition that the mortgagees should not execute any power of sale until default in payment of some principal moneys for six months after notice had been given. In November, 1900, the security was charged with a further sum of £SOO, and the executors agreed to extend the period of repayment of the whole amount until May 30, 1907. Plaintiff endeavored to sell the estate to Messrs. Doyle and Wright, of Bishopsgate, London, who were acting for a proposed syndicate, but the mortgagees, with a view to preventing this and getting possession of the estate for themselves at a gross under value, disseminated (so he further alleged) the following statements: —"The Mokau Estate is the property of the executors of the late Wickham Flower, and Jones possesses no beneficial interest in it. The coal it contains is only lignite and worthless. It crumbles away on exposure to the atmosphere. Flower obtained a scientific report to that effect." They succeeded, by this means, in preventing the sale, and also without giving the plaintiff legal notice, and contrary to the terms of tne mortgage, caused the estate to be put up for public auction by the Registrar of the Supreme Court at New Plymouth, and knocked down to them for £19,500, being the sum claimed by them to be due at that time under the mortgage.

At the date of this sale there was pending in the High Court of Justice Chancery Division an action brought by the plaintiff against the executors, in which he claimed, amongst other things, redemption, of the mortgaged premises with an account on the basis of wilful default. Mr. Justice Parker expressed a doubt whether the action ought not to have been brought by the plaintiff in the Supreme Court of New Zealand, and the plaintiff therefore abandoned the action, and proceeded to New Zealand to protect.his interests. In April, 1007, the plaintiff lodged a caveat forbidding the registration of any dealings with regard to the said land without notice to him. Nevertheless, their attorney, Mr. James Palmer Campbell, of Wellington, solicitor, sold their interests in the estate to the defendant, Hermann Lewis, for £14,000, on June 10, 100 S. This transfer, the plaintiff alleged, was a bogus one, and no money actually passed, and the transaction was a breach of the executors' duty as mortgagees. On December 13, IDO9, Lewis mortgaged his interest in n portion of the estate to Findlay, Dalziell and Co., solicitors, for £IOOO, but (the plaintiff further alleged) no consideration passed to Lewis and no sum of £IOOO was owing by the latter to Findlay, Dakicll and Co., and the parties to the mortgage had notice of plaintiff's rights and interests. These mortgages had been since January 1, 1911, released to Lewis, and plaintiff asserted that they were only executed to operate_ against him and "to further the unjust and unconscionable schemes of the defendants, or some of them," in defeating his rights and interests in the Mokau Estate.

By reason of the aliove transactions, the value of the plaintiff's interest in the estate had been so diminished that he would never be able to obtain anything like the true value thereof, and even sinee July 27, 100 C, he had been deprived of the property and of the rents and profits derivable therefrom. The defendants other than Hermann Lewis had since that date wrongfully confirmed in the possession of parts of the estate divers persons who bad not paid any adequate rent. The plaintiff, therefore, prays that the dealings of the executors with the estate be inquired into, and that accounts be taken; also that, after payment by him of what shall be found due under the mortgages of l!>0(i, and deduction of anything found to be chargeable against the executors, the defendants be ordered to reconvey the property to him, free of encumbrances, or in default to pay £IOO,OOO damages. No answer to the above statement of claim was filed, and the defendants were not represented in Court. PROCEEDINGS IX COURT. Mr. Jellicoe, in addressing the Court, traversed the statement of claim, and mentioned that, although the late Wickham Flower's dealings with the Mokau property had «ome under the cognisance of the courts in England and "of this Court on many occasions prior to 1000, the present application only went back to (bat year, -when the previous litigation had come to an end, through the death of Flower, the transfer of the property to Jones by the executors, and the mortgaging of the property to the executors by him. This mortgage was executed in England, and it required to be performed in England, so far as the mortgagor was concerned, but, while admitting thai, he would submit that it created a. security, which was enforce.

able in New Zealand only, under the provisions of tlm Lund Transfer Act.

When counsel repealed the allegation that the side to Lewis was "bogus and fraudulent," The Chief Justice said: "You can't attack that now. They «ot a title under the Act, which is indefeasible."

Counsel, proceeding, said that all the deeds and documents relating to the sale of the property to the executors by auction, and to subsequent transactions, were executed in this country in order to create interests mitagnuistie to those of the plaintiff, and he would say that all those transactions were bogus and fraudulent.

(lis Honor: But they got good titles from the Registrar.

Mr. Jellicoe: It was all done to defeat the interest of the plaintiff. He added that on the facts, as alleged, the plaintiff asked for redemption of the property, but if the mortgagees were unable to retransfcr the property to the plaintiff', he thought the arm of that Court was long enough and strong enough His Honor: The Privy Council thought otherwise in the Maori land cases at Gisborne.

Mr. Jellicoe: I am content to try its strength. His Honor said that, if the plaintiff could not succeed as to redemption, the question would arise whether the Court had jurisdiction as to a contract made in England and broken in England.

Mr. Jellicoe said some of the breaches had occurred in New Zealand. WHAT THE FULL COURT HELD.

His Honor said the Full Court (Mr. Justice Williams, Mr. Justice Edwards, Mr, Justice Cooper, Mr. Justice Chapman, and himself) bad held that the sain by the Registrar at New Plymouth was a proper one, and that Jones was barred from suing for redemption. As his Honor was bound by that judgment, it followed that all that was left for tho plaintiff was to sue for a breach of a contract made in England. Mr. Jellicoe: The plaintiff lodged a caveat, under the Land Transfer Act, against the sale, and he was called on to show cause why the caveat should not be set aside. It was set aside by the Court, although it might involve a claim for redemption.

His Honor: The Court dismissed the action as frivolous. The affidavits were before the Court. They may have been wrong, but there was 11 right of appeal to the Privy Council.

Mr. Jellicoe submitted that he was entitled to claim a remedy in ths Supreme Court for a breach in New Zealand of a contract made in England. This referred to the acts of the mortgagees through their unduly constituted attorney in Xew Zealand.' The claim for redemption or for damages in lieu of redemption was another matter. His Honor said that if the contract was made in England and broken in England, there could not be another breach in this country. Mr. Jellicoe said the last time the matter was before the Courts in England, the learned Judge in Chancery seemed to think that the only Courts that could deal with it were the Courts of Xew Zealand.

His Honor: I think lie was wrong, and the Supreme Court has said so. Mr. Jellkoe: 1 only ask your Honor to give us such a judgment as will enable us to say—if we go to the Courts in England again—that we have exhausted the jurisdiction of the Courts in New Zealand. His Honor said he would endeavor to deliver judgment'oh Thursday morniii". judgment delivered, against the applicants. By Telegraph.—Press Association. Wellington, Thursday. Judgment was given by the Chief Justice tn-day'in the Mokau Estate case, an application for leave to issue a summons for service on persons resident in England or upon their attorney in New Zealand. His Honor said it would be improper for him to grant the leave asked even if there were jurisdiction, of which he was doubtful, for the Supreme Court of New Zealand to entertain a question about a contract executed in England and apparently to be performed in England.