OWNERSHIP OF LAND

Press, Volume XCIII, Issue 28002, 23 June 1956, Page 5

OWNERSHIP OF LAND

APPEAL COURT HEARS DISPUTE

CAR DEALER’S BANKRUPT ESTATE INVOLVED (New Zealand Press Association) WELLINGTON, June 22.

. The hearing of a case arising from a dispute between James Counsell. of Christchurch, a retired farmer, and the official assignee of the estate of Counsell’s son, Harold Counsell, a bankrupt, over competing rights in a property at High street. Lower Hutt, was begun in the Court of Appeal today. The appeal is from a judgment of Mr Justice Hutchison in the Supreme Court at Wellington in November, 1955. The matter involved a property of which Harold Counsell, at present believed to be in Australia, negotiated the purchase in July, 1952. Mr Justice Hutchison’s judgment says that the property was registered in the name of William Bates Moore, who was engaged at the time in cooperation with Harold Counsell in importing into New Zealand by certain expedients good-class American cars, for which there was in New Zealand a ready market at high prices. In connexion with these car dealings. it was said that Moore came to New Zealand for only about three short periods. Purchase of Property

Mr Justice Hutchison held that Harold Counsell, giving his name as William Moore, had called on a Wellington solicitor to arrange the purchase of the High street property for £7BOO, and to arrange finance. The property was put into the name of William Moore, otherwise known as William Bates Moore. Later, William Bates Moore accepted transfer of the property into his name. In October, 1952, Harold Counsell. acting under a power of attorney given to him by William Moore, signed an agreement for the sale and purchase of the property to his father, James Thomas Counsell, the appellant in this case, as security for money lent to purchase American cars. The agreement provided that, if Harold Counsell could deliver to his father two Buicks owned by William Moore, the agreement would be cancelled.

The Official Assignee, an assignee in the bankrutpey of Harold Counsell, who had been an undischarged bankrupt since 1950. placed a caveat on the property in November, 1952,. to prevent others dealing with the property. James Thomas Counsell also put a caveat on the property in November. 1953, to protect his interest under the agreement for sale and purchase. , In February, 1954, the Official Assignee tendered to the District Land Registrar a transfer of the property which had been sent to William Bates Moore in Korea, where he was serving in the American Army, and which Moore had signed, transferring the property from Moore to the Official Assignee. In the transfer, Moore acknowledged that he had no interest in the property.

Conflict of Interests In the Supreme Court action, heard last year before Mr Justice Hutchison, James Thomas Counsell, the father of Harold Counsell, sought declarations to the effect that his interest in the High street property prevailed over the interest of the Official Assignee. by virtue of the agreement for sale and purchase that his son. as attorney for William Moore, had given to him. Mr Justice Hutchison, in his judgment in the Supreme Court trial, held that James Thomas Counsell failed in his action, and that the interest of the Official Assignee in the land, as assignee in bankruptcy of Harold Counsell, should prevail: and that the Official Assignee was therefore entitled to a transfer of the land Moore, who is

registered as the owner of the land. James Thomas Counsel! is appealing against this judgment in the Court of Appeal today. The Court hearing the appeal comprises Mr Justice Finlay, Mr Justice Cooke, Mr Justice Turner, and Mr Justice Henry. Mr R. E. Harding, of Wellington, appears for the appellant. James Thomas Counsell; and Mr T. P. Cleary, with him Mr C. L Patterson, both of Wellington, appear forflthe Official Assignee.