OWNERSHIP OF CAR

Press, Volume LXX, Issue 21321, 14 November 1934, Page 9

OWNERSHIP OF CAR

SUPREME COURT DISPUTE DAMAGES CLAMED PROM TWO PARTIES . The ownership of a motor-car was disputed in the Supreme Court yesterday, when Kemsley and Company, Proprietary, Ltd., Victoria and Wellington, New Zealand, commission agent, proceeded against Allan Reginald Perry, of Christchurch, sharebroker, for damages allegedly suffered by the car while it was wrongfully in his possession, and against Frank V. Thomas, Ltd., of Christchurch, motor and general engineers, for alleged breach of duty as bailee. Possession of the car was claimed from both defendants.

Mr Justice Johnston was on the j bench. Mr D. R. Hoggard, of Wel- ! lington, appeared for the plaintiff, I and Mr J. A. Johnston and Mr M. J. I Burns respectively for Perry and ! Frank V. Thomas, Ltd. The statement of claim set out that in March, 1934, the plaintiff company purchased a Riley motor-car. At the date of purchase the car was in the possession of the defendant company as bailee. Subsequently in March the I defendant company agreed with the < plaintiff to hold the car as bailee on I behalf of and subject to the directions [of the plaintiff company. On April 14 the plaintiff company gave an option to buy or agreed to sell the car to I Geoffrey Albert Maybury, then of Christchurch, motor salesman, and now deceased, or sold it to him subject to a lien for the price. The option or agreement was subject to the condition that delivery of the car should not be given to Maybury until full payment of the purchase price and interest and exchange by Maybury to the plaintiff company. Such payment had never been made. On Mny 3 the plaintiff company directed the defendant company not to permit the car to be removed from ihe defendant company's garage without definite authority in writing from the plaintiff company. In breach of its duty as bailee and of its instructions from the plaintiff the defendant had negligently permitted Maybury to obtain possession of the car. Thereafter Maybury wrongfully delivered the car to the defendant Perry, and while in Perry's possession it was damaged to the extent of £2OO by reason of Perry's negligence. Thereafter Perry delivered the car to the defendant company for repair, and the car was now in the possession of the defendant company. The value of the car before it was damaged was £450. The plaintiff claimed from Perry possession of the car, a declaration that the car is the property of the plaintiff company or, alternatively, is subject to a lien for the price, and the sum of £2OO damages. From Frank V. Thomas, Ltd., the plaintiff claimed possession of the car and in the alternative £450 damages for negligence in allowing Maybury to obtain possession of the car.

The Defence In his statement of defence Perry denied that the motor-car was wrongfully delivered 1o him, but admitted that it had suffered damage to the extent of £IOO since the date of delivery to him. Maybury was the owner of the car at the time of the sale to Perry, or if he was not the owner then he was in possession of the car with the consent of the owner or his agent. The defendant received the car in good faith and without notice of any lien or other right of the plaintiff and without notice that Maybury was not authorised to sell it. In pursuance of the sale or agreement for sale the defendant delivered to Maybury a motor-car belonging to the defendant and valued at £250. Maybury died on June 21 and his estate was insolvent. On May 30 Maybury and the defendant entered into and executed a conditional purchase agree* ment varying the terms of the sale or agreement for sale, and on June 2 the defendant received notice from Alfred Butcher, of Christchurch, financial agent, that Maybury had assigned to him all his rights and interests under the conditional purchase agreement. The defendant Frank V. Thomas, Ltd., denied any breach of duty as bailee, and claimed that Maybury wrongfully obtained possession of the car without its knowledge or consent and without negligence on the part of the defendant company. The defendant company was willing to deliver the car to whichever party was entitled to it.

The hearing lasted throughout the day and will be resumed at noon to-day.