CLAIM FOR £402

Press, Volume LXXXVII, Issue 26524, 12 September 1951, Page 8

CLAIM FOR £402

CAR BOUGHT UNDER HIRE PURCHASE

MAGISTRATE’S DECISION

Reserved decision was given in the Magistrate’s Court yesterday by Mr Rex C. Abernethy, S.M., on a claim for £402 18s between Norman James Forward, a car-dealer, of Christchurch, the plaintiff (Mr J. R. L. Campbell) and Edward James Paine, a salesman, formerly of Auckland, but now of Christchurch (Mr P. H. T. Alpers) and Thomas Archibald Felton, public accountant, of Auckland (Mr A. C. Brassington). The case was heard on August 28 when evidence was given on transactions by the parties on the sale of a motor-car which was subject to a hire purchase agreement. In his decision, the Magistrate said: “In April last, Paine pleaded guilty to obtaining money by false pretences in respect of the sale of the car to Forward, and is now serving a sentence of imprisonment for that offence. He gave evidence at the hearing of this claim. The evidence of Paine and Felton I find very unreliable and conflicting. I am not prepared to hold from the evidence of either of them that Felton held £520 in Paine’s account for Forward. All I can say is that it appears to have been held in Paine’s account. Curiously enough, in none of the matters before the Court has any party asked for production of Feltons ledgers. “I agree with Mr Brassington. counsel for Felton, that as Felton did not own the money and therefore could not declare himself a trustee of it for someone else, whatever was said over the telephone to Forward and next day to Forward’s solicitor, Mr Thompson, by Felton (thoroughly as I discount Felton's evidence), does not measure up to the certainties necessary for a valid declaration of trust,” said the Magistrate. “I do not propose to traverse the evidence in detail; but I have considered it all very carefully. I suspect that what Felton said to Mr Thompson was something, which, while smacking a little of each, was neither a declaration of trust nor a guarantee, but rather something which bore the reassuring declaration of Felton’s intention to bring the money down to Christchurch for Forward when he came. Mr Thompson has no written record in confirmation of his telephone conversation and his memory of specific statements and words used, does not I think justify the Court in spelling out a declaration of trust. At the worst for Felton, if he were liable at all, I think he could be liable only for damages for his representations and not as upon an alleged but faulty declaration of trust. • “The result then is, that, even if I had jurisdiction, I would not find a declaration of trust in Forward's favour; but as I hold that for this Court anyway, at this juncture, the disposition of the £420 is res judicata I decline jurisdiction in the Alternative claim,” said the Magistrate. "In regard to the first claim for £402 18s, the plaintiff will have judgment against Paine, with costs to be fixed by the Registrar. In respect of the same claim against Felton. Felton will have judgment against the plaintiff. I find Felton’s evidence so unreliable and contradictory that I allow him no costs on his judgment,” said the Magistrate.