COURT PERPLEXED.

Auckland Star, Volume LIX, Issue 251, 23 October 1928, Page 8

COURT PERPLEXED.

UNUSUAL NEW LYNN CLAIM.

! DAMAGES TO THEATRE;

TOWN BOARD AS DEFENDANTS. i *

SIX COUNSEL ENGAGED.

."I am amazed that this action has been brought in this Court, said his Honor Mr. Justice Blair at the Supreme Court this morning, when 'proceedings of an unusual nature . were brought against the New Lynn Town Board and Messrs. Stevenson and Son, contractors for the sewage tunnel constructed in connection with the New Lynn drainage scheme. The plaintiffs were Howard Oakley Browne, who proceeded against the Town Board, and George Vincent Mul!enger, against the Town Board and the contractors. • »■ 7

Six counsel were engaged. Mr. Leary' represented the first plaintiff, H. OBrown, and Mr. Finlay the second nlain tiff, G. V. Mullenger. Messrs. Northcroft and Haddow appeared for the New Lynn Town Board, and Messrs. Lowrio and Inder for tho contractors, Messrs. Stevenson and Son.

For over an hour counsel and the Bench were involved in lengthy argument as to whether the action should have been brought in the Supreme Court or in the Compensation Court under the Public Works Act. His Honor then ordered an adjournment to enable counsel to prepare a concise written statement on which the proceedings could be continued. i "I don't know what the limits are," said his Honor. "Counsel do not seem to know what they are agreed upon, and if it comes to a pure question of compensation or damages, the proper •nlace to decide it is the Assessment Court." Statement of Claim. Tn his statement of claim the plaintiff, Browne, set out that on July 28, 1926, he obtained a leaae from George Vincent Mullenger of a hall at New Lynn known as tho Delta Theatre, and two adjoining chops. The lease was for a period of five yeans, with a weekly rental of £15 a week, with the right of refusal of renewal of the lease for a further term of five years. The lessee carried on the cinematograph and general entertainment business at the theatre, and, in one of the shops, a confectionery business. The New Lynn Town Board arranged with a contracting firm, William Steven-

aon and Son, to perform certain drainage work in the district, whereby it wm necessary to tunnel along the aide and under the Delta Theatre. It would be alleged the contractors negligently failed to tambar the tunnel in a proper manner, and it collapsed, with thei result that the land supporting-the Delta Theatre subsided, disturbing the foundations of the building and causing the wall to collapse. The town board had statutory .power to construct drainage works within its area, but also had a duty of care to inhabitants owning property in the town board's district in respect to such drainage. As a result of the collapse, the theatre became unfit for use and had to be closed. Contractors had to put down piles and shore up the wall with heavy timbers. The building remained unsafe for theatre usage and was condemned by the New Lynn Town Board as dangerous for use as "a theatre. Loss of Profits and Rent

While the theatre was operating, the plaintilT stated, he cleared £20 a week net profit, and had suJfered serious loss and damages and was liable for the payment of rent. Plaintiff sought £1500 damages for loss of goodwill and depreciation in the value of the lease, and also claimed £580 under various headings, and £500 general damages. The second plaintiff Mullenger claimed £145 for lo« of rent from May 14 to the date of issue of the writ," also a sum of £850 gpccial di.mages and £250 general damages. I (Proceeding.)