WARTIME DEBTS

Waikato Times, Volume 125, Issue 20922, 29 September 1939, Page 4

WARTIME DEBTS

EMERGENCY REGULATIONS EFFECT ON CIVIL CLAIMS PROCEEDINGS SUSPENDED The first effect in Hamilton of the recently-gazetted Courts Emergency Powers Regulations, 1939, which concern the collection of debts by Court procedure became evident in tne Magistrate’s Court to-day, when a number of civil claims were adjourned to enable plaintiffs to bring proof before the Court that defendants’ inability to pay was not due to war conditions. The regulations, which were gazetted on September 22, came into force on the following day. The general effect is that no judgment can be enforced by judgment summons, distress warrant or attachment proceedings without the leave of the Court, which will not be granted unless plaintiff can show that defendant’s inability to pay is not due to the war conditions. The regulations also effect applications for possession of dwellings, exercise of powers of sale and proceedings for breaches of the covenant of any mortgage. Effect on Mortgages As set out in the Gazette, the regulations are as follows: No person shall be entitled, without the leave of the appropriate Court, to do, or to continue or complete the doing of any of the following acts: (a) To proceed to execution on or otherwise to the enforcement of any judgment; (b) to exercise any legal remedy; (c) to call up or demand payment of the principal sum or part of the principal sum secured by any mortgage; (d) to exercise any power of sale conferred by any mortgage; (e) to commence or to continue proceedings in any Court for breach of any covenant expressed or implied in any mortgage, other than a covenant for the payment of interest. Nothing in the regulations shall effect any power of sale of a mortgagee of land or an interest in land, who was in possession of the mortgaged property at the commencement of the regulations. Neither shall it affect the sale by a mortgagee who has appointed a receiver who, at the commencement of the regulations, was in possession of the mortgaged property or in receipt of the rents and profits from it. The power of sale by a mortgagee in possession of property other than land or some interest in land, where the power of sale has arisen and notice of the intended sale has been given before the commencement of the regulations, shall not be affected. Other factors which are outside the scope 6f the regulations are the right or power of pawnbrokers to deal with pledges, and the institution or prosecution of proceedings for the appointment by any Court of a receiver of any property, or for the recovery of possession of land otherwise than in default of payment of rent. Legal Remedy The “legal remedy” referred to in the regulations is defined as follows: (a) The levying of distress; (b) the taking of possession of any property or the appointment of a receiver of any property; (c) re-entry upon any land; (d) the realisation of any security of the forfeiture of any deposit; (e) the rescission of any agreement for the sale and purchase of land; (f) the serving of a demand under paragraph (a) of section 170 of the Companies Act, 1933. Where at any time after the commencement of the regulations any person who is not at that time a member of any of His Majesty’s permanent forces is called up for naval, military or air service, within New Zealand or elsewhere, the regulations shall not apply to any judgment | for the recovery of a debt in respect of a contract made after he is called up. Neither shall they apply to any judgment against a person for the enforcement of a contract, or to any legal remedy or power available in consequence of default of fulfilment of the obligation by the person, being a debt or obligation arising by virtue cl any such contract. Offer and Acceptance “For the purpose of these regulations a contract shall be deemed to have been made before any date if an offer made before that date, so as to be binding on a contracting party ! if accepted within a specified period after that date, is accepted by the coi tracting party within that period,” I static the Gazette. If, on the application for leave to continue with the proceedings, the Court is of the opinion that the person liable to satisfy the judgment, or j to fulfil the obligation in question, is unable to do so immediately ow- ; ing to circumstances attributable directly or indirectly to the war, the j Court may, at its discretion, refuse the application for leave or grant it either inconditionally or subject to any conditions the Court thinks fit. Similar provisions are made regarding bankruptcies. No provision is made for an appeal from any decision of the Supreme Court or of a magistrate under the regulations.