PERSONAL OR POSTAL?

Auckland Star, Volume LIX, Issue 96, 24 April 1928, Page 11

PERSONAL OR POSTAL?

QUESTION OF "SERVICE."

INTERESTING LEGAL DECISION

ax unlucky plaintiff,

The essential difference between personal and postal service so far as legal documents are concerned, was emphasised in the course of a judgment which was given by Mr. Justice MacGregor in the Supreme Court to-day. Notice of intention to claim a lien was the point at issue. Plaintiff was Charles Henry Irankham, timber merchant, who sought to establish a lien on a parcel of land belonging to Hugh George McLisky, and mortgaged to William Arthur Hugh Keith. A formidable array of counsel had been engaged, Mr. Finlay for plaintiff, Mr. Gould for the mortgagee, and Mr. Butler, Mr. Herman and Mr. Milne for other parties. Plaintiff supplied timber to the value of £338 to McLisky, who was building a house for himself on the land. Frankham alleged that notice of his intention to claim a lien was given to defendant on October 28, 1927.

His Honor said the first question to be determined was whether this allegation had been proved. If it had not, then it was clear that no statutory lien could be established in view of the express provision under the W T ages Protection and Contractors' Liens Act of 1908. It would appear that the essential thing was that the notice itself must be brought to the notice of the owner. If, for any reason, service could not be so effected, then the plaintiff must produce satisfactory evidence that the terms of the notice were brought home to the notice or knowledge of the owner in some other way.

It was admitted that personal service of the notice was not effected, although efforts were made to effect such service on October 26, 1927. On the same day a copy of the notice was forwarded by registered post addressed to the defendant McLisky at his home in Auckland, but this was returned by the Post Office some days later, unopened and marked "not called for" and "return to sender." "In these circumstances," concluded his Honor, "it is, I think, obvious that the plaintiff has failed 'to give notice to the owner' in terms of, the section, and accordingly that his present application cannot succeed. It is unfortunate for the plaintiff that this should be the case, as he appears to have supplied the timber in all good faith, but I feel constrained by the clear language of the statute to reject his claim on this preliminary yet substantial, ground of objection."

Costs were not allowed to any of the parties save the mortgagee, who was awarded three guineas.