N.Z. MINING LITIGATION.

Auckland Star, Volume XLV, Issue 70, 23 March 1914, Page 9

N.Z. MINING LITIGATION.

D. ZDIAN" V. CONSOLIDATED GOLDFIELD-. (From Our Special Correspondent.) LONDON February I__The hearing was concluded on. Saturday, before Lords Justices Buckley and PhillimoTe, in the Court of Appeal, of an appeal in connection with interlocutory proceedings in the pending action of Ziman v. the Consolidated Goldiields of New Zealand. The appeal was hy the plaintiff, Mr. j>avid Ziman, from an order of Mr. Justice Coleridge, who directed that a

commission should proceed to N«w Zeiilan.l for the examination of three witnesses, lor the defendants, namely. iMr. Walter Evans, general manager of the defendants' : mines until 1-11: Mir. Cooper, a local accountant; Mr. Birley, a superintendent of the mine. It was explained that .Mr. David Ziman was a director of the defendant company until recently. He is claiming from the company damages amounting to _; 12,000, alleging breach of agreement by the defendants. His case was that in 1890 he entered into an agreement with the company, seUrnjr them mining rights in certain property in New Zealand, lv that property was the Energetic mine and the Wealth of Nations Mine, and it was stated that the Energetic was of no value whatever, but from it ran a sliafi by which the Wealth of Nations could ho successfully worked. The latter mine was of groat value. It was part of the agreement (the plaintiff that the property should 'be disposed of when it became saleable in 1011, when 'he asked the directors to dispose of it. Had the property 'been sold he would have received another £12,000. and a= the defendants did not sell 'he had-lost that -Urn.

After hearing counsel for Mr. Ziman. their lordships, without calling upon counsel for respondents, dismissed .the appeal with costs.

Lord Justice Rnckley, in voicing the decision nf the Court, paid the actiort was one in which the plaintiff srrod for damages for alleged breach of an ajrrccrnent dated February 28, IS_B. in which •plaintiff sold de-fendant company mining properties in Xew Zealand, which, included the Energetic and the Wealth of Nations mines, lie based hie' claim on two claJises in the agreement, lie said that lhe true construction of the agreement was that it was the dirty of the company to form a company to acquire the property when, and at such time, ns was practicable to dispose of it. and then pay him £l_,on_. He said that the trrie construction ol" the agreement was that the company wctc bound to sell at some' time ot other, and the breach ho alleged was that they had not sold it as they ought to have done. The defendants said that there wns no suefli duty on them at all. and -further, that even it the plai__ifT"s construction was rijrht. he consented to a withdrawal of the obligation to sell the 'property when it was saleable, and that he waived and abandoned any claim he mi;rht have.

The writ in tbe action, continued his lordship..' w_. s - issued in 1013. For .a period of 17 years the plaintiff a.nd defendant company had worked the- mine, and mr the i.a.me period thp plniirriff has been a director -of the company, while he was Tnanatrin_ director on two oceariions. The questions of f.ict which 'became material were these:— Has the mine at some time or other become saleable? Defendants said. "So. it has never beeome.Raleaible at all. and is hot now." Or deferu'.ants' might put it in this way: "The mine is saleable vow, and was. saleable long ago, say in lSflfi, 'hut plaintiff, as a director, has oirried it on and worked it with the company, and .has not said *t>ell it. and give mc what 1 am entitled to from the -proceeds of the sale."" All these matters were questions of fact to be determined. On that it would be necessary to find out what had happened to the mine durin<f all these yean-: what it had become at a later date: what it was now: how and when it was developed, and when it really became saleable. Evidence had to be adduced by the defendants on all the:-e questions, and they, therefore, .aid: "We have to H-et evid'ciu-e from the managers of : the work. .'* Plaintiff said. "' We have the reports o-f the nrarratreTS to the director?, md Off the director!! to the shareholders. I will accept these to show whit the true 5... of facts were." - His offer did not seem to 'be much of an offer. The reports to the shareholders we-rc -reports the plaintiff made himself, and to say. " You may read against mc what I wrote myself," did not seem to his lx>rd_hip to 'be a very valuable offer. Tiie dire-tors might be entitled to say that their reports may 'have been honest ones, but were a little rosy, to show that the concern was doing well; or. on the other . liand. they might say that the -reports were only moderate to show that the property was not saleable. The defendants, to obtain their evidence, sought to examine on commission three witiK>sse<r, and tiie Court thought that in the circumEtanees the evidence conld be got quicker by the .onnntsskm than if the men 'had to be brcrajrht over here. "In addition to that, the services of two of the three witnesses were extremely valnaWe at the -mine. Having -regard to all the circumstances, the appeal would 'he dismissed.