SUPREME COURT.

Taranaki Daily News, 9 February 1920, Page 6

SUPREME COURT.

SATURDAY'S SITTING. IN DIVORCE. (Before His Honor Mr. Justice Sim). When the Court resumed on Saturday morning the case of Hori Teira v. Roka Hone Pera (respondent) and Wehi (corespondent) was mentioned, and the necessary papers having been filed, his Honor granted a decree nisi, to become absolute hi three months. Costs on the lowest scale were allowed against corespondent.

LAND AGENCY TRANSACTION. APPEAL FROM MAGISTRATE'S DECISION. The appeal of the South Taranaki Building Company, Ltd., of Hawera, against the decision of Mr. Wyvern Wilson, S.M., at Hawera, was heard before Mr. Justice Sim on Friday and continued on Saturday. In the Magistrate's Court at Hawera, Annie Josephine Fama, and Bernard Augustine Fama, builder (her husband) sued James and Gillman,,land agents, of l-Tawera, alleging that they had put a house property at Hawera into the latter's hands for Bale at £1825, but that James and Gillman had fraudulently sold the property for £ISOO, and concealed the fact from them. They later found out that the property had been sold for £IBOO, but completed the transaction, "nd brought an action to recover the £25. They joined the South Taranaki Building Co. as defendants, alleging that James and Gillman were the undisclosed servants of the Building Company, that the Building Company did not hold a land agent's license, and thev therefore claimed the refund of £SO commission paid to James and Gillman.

Tiie Magistrate found that there was no fraud on the part of'.Tames and Gillman. and therefore disallowed the claim for the £25, but found there had been n broach of a fiduciary duty, and he held that James and Gillman were the servants of the P.uilding Company, who I were not licensed land agents, and therej fore gave judgment for the return of I the £SO commission.

The Building Company therefore appealed against this decision, and the plaintiffs (Fama. and wife) put in a cross-appeal against the decision of the Magistrate in finding no fraud on the part of James and Gillman, and asked that judgment be given in respect Of breach of fiduciary duty as found by the Magistrate. At the hearing, Mr. P. O'Dea. Hawera, appeared for the Building Company (instructed by Mr. James Foy, Hawera). He also appeared for .Tames and Gillman on the cross-appeal (instructed by Messrs Welsh, McCarthy and BeeclievJ. Mr. F. C. Spratt (Hawera) appeared for the Famas. The appeal turned on the ground as to whether the Company could receive commission on the sale of" property effected by .Tames and Gillman, who acted as agents for the Company, althou .i: the latter held no land agents' license. Mr. O'Dea submitted that as James and Gillman were the authorised agents of the Building Company it was not necessary for the latter to he holders of a license, and that there was no provision in the Land Agents' Act which required ■Tames and Gillman to account to anyone for the disposal of profits on any of their transactions. He also' submitted that the fact of the Company being undisclosed principals was not a contravention of the provisions of the Land Agents' Act.

The submissions on behalf of respondent were in the direction of showing that as .Tames and Gillman were the asrents for the Company, the deposit 'liffieiilt.y arose through the fact that the Company, at the time of the transaction, was an undisclosed principal of James and Gillman. Counsel went so far as to submit that in such a position, a vendor could not be called upon to pay commission to an undisclosed principal, notwithstanding the completion of the transaction. The oualitv of the acts of the agents was the subject of some strong comment on the part of Mr. Spratt. whereat his Honor remarked that if he was setting out to reform the morals of land agents he had a long road b°fore him. Argument was continued, in the course of which it was further submitted that the asrents acted in excess of their authority in offering the properly for £IROO. when the instruction was for £1825, and it was stressed that the <<■ hm-ini? found there was a breach of dut.v should have given judgment for the £25, and that he should, if necessary, have amended the pleadings. Decision was reserved.

DISPOSAL OF OTHER CASES. Other cases set down in the calendar were disposed of as follows: James R. Corrigan v. Noti Wairahuia, claim for £250, on account stated and agreed upon. —Adjourned till next session. The appeal of Emenv v. Nolan from a decision of Mr. .T. W. Poynton, S.M., was set down for hearing at 9.30 a m. to-day.