CLAIM AGAINST SOLICITOR

Press, Volume LXXXVIII, Issue 26869, 23 October 1952, Page 10

CLAIM AGAINST SOLICITOR

SECOND DAY OF HEARING DEFENDANT’S EVIDENCE (New Zealand Press Association) WELLINGTON, October 22. The hearing of the claim by John Hugh Marshall, of Titahi Bay, a farmer, against Robert Lachlan Macalister, of Wellington, a solicitor, was continued today before Mr Justice Fair and a special jury of 12. Marshall is claiming £2472 7s Id special damages and £lOOO general damages, alleging that an agreement drawn by the defendant on his behalf was void. Mr J. H. Dunn is appearing for the plaintiff. The defendant is represented by Mr G. G. G. Watson and Mr W. P. Shorland. The case is expected to end tomorrow. When the hearing was resumed today, Mr Watson moved for judgment for the defendant or judgment on a non-suit. The jury was dismissed for an hour and the application was taken in chambers. Mr Justice Fair reserved his decision and instructed the defence to proceed. In his address to the jury, Mr Watson said that Macalister had specialised in the preparation of document? and had great skill and experience ir that branch of law. Yet Marshall sai< he had drawn ub a document which an elementary student of law woulc have known was not valid. Mr Watson said it was not true that Marshall had to lose about £2OOO because the deed was not valid. Marshall had paid it solely in the interests of his gigantic compensation claim for £300.000. which was about to be heard. When the Crown took over part of the land he had bought from Mrs Marshall the plaintiff was faced with the fact that the property was still in her name and was also mortgaged. When he sought a substantial amount of the compensation on account, the Crown refused because he w-as not the registered owner. So he instructed the defendant to arrange with Mrs Marshall that she should accept the amount due under the 1941 agreement. The plaintiff had said that when Mrs Marshall saw the amount he was claiming as compensation she would not accept the reduced amount under the 1941 agreement, said Mr Watson. He began proceedings against her to enforce her to accept that amount. Mrs Marshall lodged a defence on the grounds that she had not understood what she was doing when she entered into the 1941 agreement, that she had been persuaded by her husband to agree, that the agreement was a harsh and unconscionable bargain that should rot be enforced, and, finally, that the agreement provided no consideration. The defendant had advised the plaintiff that the agreement was valid, but that with his £300.000 compensation claim coming on he could not afford to have a dispute between himself and his wife ventilated in public. The olaintiff had accordingly instructed that the case be settled, and it was settled at £BOOO. about halfway between the £ 14.000 set as the price of the land in 1936 and the £lO.OOO arrived at under the 1941 agreement. Defendant’s Evidence

The defendant, in evidence, said that he first acted for Marshall in 1934 and continued to do so until there was trouble over payments in the compensation case. In 1941 Marshall had brought to the witness an agreement made in 1936 and prepared in a •stock agent’s office. Under this agreement, which was signed by Mr and Mrs Marshall. Mrs Marshall had sold to her husband property she had previously disposed of to the Titahi Bay Golf Company. The company had been unable to continue with the deal and it had fallen back on Mrs Marshall’s hands. The rest of the Titahi Bay property, which was then under agreement for sale to the Whitehouse family, was not mentioned, but was to be included in the new agreement which was to be prepared at this time. The Whitehouse property had been repossessed bv Mrs Marshall. The Marshalls wished a new agreement drawn, said the witness, and all details had been arranged before the parties saw him. Marshall had told the witness that he wished his arrangements with his wife put on a proper business footing, and said be had rendered valuable services to his wife. At this time Marshall also mentioned to the witness that he was liable under a mortgage to the Bank of New South Wales over the cabaret building at Titahi Bay owned by his wife. The bank had threatened to sell the property, which belonged tn his wife and was mortgaged to the bank. Marshall made himself responsible for the mortgage and other matters connected with a settlement with the bank. “I asked Marshall to request his wife to come to see me.” said the witness. “She came alone, and I discussed with her the various points I had raised

with her husband. She said the arrangement had her approval, and asked that a document be prepared. When Marshall asked for the agreement to be drawn up, I said I wanted a little time to think it over. If it had been no more than a voluntary reduction of price I would have prepared a gift statement as between the parties.” Further' questioned by Mr Watson, the witness said that after the dispute over the 1941 agreement it was agreed between Marshall and his wife that the amount of liability to her be £BOOO. Under the 1936 agreement it would have been £lO,OOO, and under the 1941 arrangement £5OOO and interest. After the final settlement with Mrs Marshall, the witness said, he had been approached by the plaintiff to go into partnership with him in the purchase of a property at Jacob place, Wellington. The witness had refused, and Marshall instructed that a company be formed to buy the property. This, said the witness, was an astute way to bypass land sales restrictions. If the company wished to sell the property it had only to sell its shareholdings. Marshall, as a member of a company, did in fact buy the property, and sold it at st considerable profit shortly after the war to Truth (N.Z.), Ltd. The witness said that when Marshall knew that his claim against the Government for £300.000 for the taking of the Titahi Bay land had been reduced to an award of £47.000 he was very bitter and thought that justice had not been done. He did not voice any complaint against the defendant. Witness Cross-Examined The cross-examination of the defendant by Mr Dunn began shortly before the Court rose, and it will be continued tomorrow morning. When asked by Mr Dunn whether all the cross-examination of Marshall had been carried out on his instructions. the defendant replied that he had conferred with his counsel on the point. Mr Dunn: Do you support all his cross-examination? The witness: Yes. Do you agree with your counsel’s suggestion that because Mr Justice Hay and Dr. Mazengarb, your former partners, have not been joined as defendants, there is malice against you? —lt is for the plaintiff to sue whom he pleases. You do not think that because you have been selected there is malice?— I do. Have you a diary showing all the interviews you have had in this case? —No. Very few members of the legal profession today do keep detailed diaries. You are quite clear about all the details of your evidence?—When I have been in doubt I have expressed that doubt. Macalister went on to say that in completing the 1941 agreement he had a duty to both parties, and he exercised it to the best of his ability. He had not entered a consideration in the 1941 agreement because he could not evaluate it. At this stage the cross-examination was adjourned until the Court resumes tomorrow morning.