Supreme Court OWNERS SEEK RETURN OF LEASED RACEHORSE

Press, Volume XCIX, Issue 29270, 30 July 1960, Page 17

Supreme Court OWNERS SEEK RETURN OF LEASED RACEHORSE

Mr Justice Richmond in the Supreme Court yesterday was called on to decide who should have possession of a well-per-formed pacer, winner of five races but at present disqualified from racing because a drug had been administered to it before one of its winning starts. The pacer is Space King, a 4-year-old bay gelding, winner of five races in 31 starts; placed second four times, and third four times, and winner of £1445 in stakes in 1959. The parties disputing possession of the horse are its owners, Marjorie Louise Bell, a married woman, of Auckland, and Leonard Edward Charles Jerard, a carrier, of Christchurch; and Lloyd Derrick Ashton, a farmer and former horse trainer, of Pound road, Yaldhurst, who has a lease of the horse from the owners with an option to buy it for £3OO. The owners, for whom Mr P. T. Mahon appeared, seek possession of the horse by applying to the Court to rescind the lease on the ground that it had been breached or frustrated when Space King and Ashton were disqualified or, alternatively, asking for £5OO damages for breach of contract implied in the lease. Ashton, for whom Mr P. G. S. Penlington appeared, denies there was any implied term of contract in the lease; that if there was such a term he had wilfully to breach such term whereas he had acted in good faith in administering a drug to the horse; that the owners were only entitled to nominal damages because they were speculative and dependent on the horse’s winnings; that his option to buy the horse for £3OO was a separate and collateral contract to the lease, and the option remained valid even if the Court held the lease had been breached. His Honour, after hearing evidence for . both parties, adjourned the hearing with counsel’s legal submissions incompleted. Terms of Lease Opening for the plaintiff owners, Mr Mahon said that Space King was leased to the defendant trainer, Ashton, on February 17 1958, .until July 31, 1960. The defendant, under the terms of the lease had option to buy the horse for £3OO at the expiry of the lease. Ashton agreed to pay the owners 20 per cent, of the stakes the horse won during the term of the lease. On September 19, 1959, at the New Brighton Trotting Club meeting, Space King won the Bowhill Handicap, said Mr Mahon. It returned a positive swab. After an inquiry on November 23 last, by the stipendiary stewards under the rules of trotting, the horse was. disqualified from racing for three years, and Ashton was disqualified from training for three years by having his trainer’s licence suspended. The lease of the horse was registered with the New Zealand Trotting Conference because the rules of trotting required registration of any joint interest in a horse. Ashton had appealed against his disqualification and his appeal was heard by appeal judges under the rules of trotting. The appeal was dismissed on February 10, 1960. The owners’ solicitors wrote to Ashton’s solicitors on February 24, 1960, said Mr Mahon, and asked for the return of the horse. Ashton had declined, and further indicated that he would in due course exercise his option to buy the horse. The owners then commenced the present proceedings, counsel said. It would be contended that there must have been a term or condition that the lease terminated on disqualification of , the horse or Ashton for any substantial period of time.

“If that is not so—and leases of this kind are very common and there must be hundreds in existence in New Zealand—disqualification could make horses virtually unworkable during the period of lease,” said Mr Mahon. Effect of Disqualification His Honour: Was the horse prevented from racing from the time of its disqualification? Or was there a stay of execution? Mr Mahon: No. sir. There was a stay of execution, as you put it, on the horse. The horse was able to race until the appeal was heard and dismissed. I traderstand the rules of trotting have been changed now, but that was the rule at the time. His Honour: Could the horse be transferred and then be allowed to race? Mr Mahon: If the Trotting Conference officials thought it a bona fide transfer, the disqualification ban on the horse would be lifted. He said that if a lease did not imply a breach of contract on a horse or trainer being disqualified, in trotting or racing, the owners, the innocent parties in this case, would suffer. For instance, a valuable horse, perhaps a Phar Lap, might be leased for two years and be disqualified a day later for some reason or other. “Then, if our contention is not right, the lessee and horse cannot race for two years; the owners cannot get the horse back and have no hope of its winning In tile present instance. Space King had been disqualified some eight or nine months before the expiry of the lease, July 31, 1960. Between New Year and that date th r horse could have started in 10 races. . William Henry Larcombe, secretary of the New Zealand Trotting Conference, gave evidence of the lease being registered with the conference. The part-owner of Space King, Jerard, said that Mrs Bell, the co-owner, was his mother. He gave evidence of the leasing of the horse to Ashton. Consulted Veterinarian For the defendant, Mr Penlington said Space King was not a good feeder and Ashton had consulted a veterinary surgeon who supplied a tonic. The surgeon had warned him against giving the tonic to Space King less than 24 hours before a race. The tonic had been administered two days before the race from which Space King had been disqualified. Counsel submitted that in spite of the disqualification the lease was still capable of performance. Racing the horse was only one object of the lease. Ashton could still look after and feed the horse.

the other object of the lease. Ashton gave evidence that Space King was in poor condition when he received, it from another trainer, named Stokes, in late 1957. He improved the condition of the horse and it was registered with the trotting conference in December, 1957. In October, 1958, he raced the horse and it qualified. In August, 1959, said Ashton, after Space King had run in a classic race at Addington, he asked Jerard if he still wanted to sell his share of the horse. Jerard said he was not interested in selling. Space King hacj always been highly strung and a difficult horse to manage. It was a poor eater. In the middle of August he obtained a tonic from a veterinary surgeon to help a horse “shy in eating.” , He knew the, tonic contained nux vomica. He gave it to the horse on September 17— two days before Space King won the Bowhill Handicap at New Brighton, returned a positive swab, was disqualified and the £295 stake forfeited. Space King was then assessed on 2min 48sec for the mile and aquarter. He had given the horse a lot of hard racing between the returning of the positive swab and' final disqualification after losing the appeal. Reached “Tougher Classes” To Mr Mahon, Ashton said Space King had won £lOOO in September, October and November 1959, excluding the £295 stake forfeited. At the time of his disqualification. Space King had reached the tougher classes in trotting races. Mr Mahon: Did you think it would win more races? Ashton: I thought it would win only one more race. Only one more?—Yes. Have you ever been offered large sums for the horse?— Never, in black and white. Have you ever had an offer verbally, as is largely done in racing circles?—Once, for £2OO. You have only had one offer of £2OO for a horse that won £l3OO in 'three months?—Yes, £2OO from a man at Addington. Have you ever tried to sell the horse?—Never. Do you think Space King a good horse?—lt is by King Scott out of Pacing Folly. The dam is good, but the sire has no breeding. His horses might win five races and then you never hear of them. Then why do you want to buy Space King, Mr Ashton?—l have looked after the horse and cared for it. The family has become very attached to it. The only reason you want to kgep it is for a pet?—One of the main reasons. You are willing to pay £3OO to’keep Space King as a pet for your family?—Yes. You could get hundreds of pets for £3oo?—Yes, but not one my family is attached to. To further questions, Ashton said he had intended to race the horse once more then turn it out for six months. This was not unusual. Alfred George Green, a veterinary surgeon, said he prescribed the tonic for Space King. It contained caffein, a drug which would give a horse a sense of well-being through stimulating its stomach muscles. He had warned Ashton not to administer the tonic less than 24 hours before a race. To Mr Mahon, witness said Space King was a type of horse liable to pack up under hard work. Referred to a mile-and-a-half time of 3min 16sec by Space King, witness said it would be a very good 4-year-old pacer to record this time.