COURT OF APPEAL.

Press, Volume LXIX, Issue 20904, 11 July 1933, Page 15

COURT OF APPEAL.

RESERVED DECISION DELIVERED. LIABILITY OF GUARANTEE FUND. (PRESS ASSOCIATION TELF.aHAy.) WELLINGTON", July 10. Delivering its reserved decision upon questions of law arising before the trial in the action of Fred Allies Hooker against the New Zealand Law Society, the Court of Appeal this morning held that before liability under the Law Practitioners (Fidelity Guarantee Fund) Act, 1931, could attach in respect of the alleged defalcations of a solicitor-trustee, it must be shown that money or other valuable property was entrusted to or held by that person in the dual capacity of trustee and practising solicitor; that it was stolen during the co-existence of such dual capacity; and that if the money was held by the person in his capacity as trustee only, and was stolen by such person during the time that it was held by him only in that capacity the guarantee fund was not liable, although the trustee might be a practising solicitor. In the actual case before it, the judgment of the court was delivered by the Chief Justice, the Rt. Hon. Sir Michael Myers. After referring to the fact that the moneys in question were paid out of the trust account of the firm of Grey and Grey and into the account of the defaulting trustee, and were afterward stolen by him, it proceeds: "It seems to us that from the point of time when the moneys were so paid out of the firm's account the firm and the "defaulting person ceased as far as those moneys were concerned to have any duties as solicitors, and the defaulting trustee held those moneys as trustee and only as trustee." On the question of leave being obtained to commence the action, the court held on the facts that the Law Society must be deemed to have made an election in favour of plaintiff which it was not in the circumstances of the case entitled to withdraw. Costs were fixed at £3l 10s, the question of who should pay them being left to the Supreme Court upon hearing the action. • t