COURT OF APPEAL

Press, Volume LXX, Issue 21213, 11 July 1934, Page 9

COURT OF APPEAL

PUBLIC TRUSTEE'S HANDLING OF ESTATE U'UKSS ASSOCIATION TELEOEAM.) WELLINGTON, July 10. Continuing his argument before the Court of Appeal in the case of the Public Trustee v. Alice Merry, a widow, Mr J. B. Callan, K.C., counsel for the appellant, further elaborated a submission that neither the report of the special referee nor the evidence given before him justified the finding of negligence on the part of the Public Trustee. Counsel contended that the evidence disclosed only one pos.sible overt negligent act. The rest of the evidence was purely the opinions of valuers, etc. The possible act of negligence was the failure of appellant to raise the rent of the Kilbirnie property pursuant to a recommendation of its property inspector mad'-3 in August, 1924. This failure was due, in counsel's submission, to th2 fact that John Merry died in September, 1924, with the result that the Public Trustee anticipated that the estate would then be taken over by Mrs Merry. Consequently, the Public Trustee had not disturbed the existing position because of the danger of losing the Kilbirnie tenant and further antagonising Mrs Merry. Dealing with the second main submission, that as from February 7, 1925, Ihe Public Trustee was obliged only to preserve the status quo. counsel for the appellant stated that Mrs Merry and her son were repeatedly asked by the Public Trustee to take over the cslate. She refused either to take over the estate herself or pay the Public Trustee for further administration bv him, therefore he was not obliged to do more than preserve the existing position of the properties. Mr Evans, who is also appearing for the appellant, addressed the court on the submission that the English decision m Dufty v. Palmer apolied in New Zealand. If this decision were held to be applicable, the damages should be substantially reduced.