Supreme Court Claim For Commission To Be Heard Again

Press, Volume C, Issue 29623, 20 September 1961, Page 12

Supreme Court Claim For Commission To Be Heard Again

A Christchurch land agent. Joe Black, appealed in the Supreme Court yesterday against a magistrate’s decision last November in which Robert McGloin. formerly employed by Black, was awarded £232 5s for the balance of commissions on properties sold during his employ. After hearing, submissions by counsel yesterday, Mr Justice Macarthur adjourned the ease for rehearing in the Magistrate's Court. He said there were matters which had not been fully investigated or argued at the hearing in the Magistrate’s Court and this factor added to the difficulties of the Supreme Court in dealing with the appeal upon the written record. In all the circumstances it was not possible for the Supreme Court to adjudicate in the case. Mr A. Hearn appeared for Black and Mr R. K. Godfrey for McGloin, now a woodworker living in Christchurch. Mr ■■ Hearn said that McGloin worked for Black for 15 weeks from January to May last year. When the case was heard in the Magistrate’s Court, McGloin gave evidence that the arrangement between them was that Black should pay McGloin 20 per cent, of the commission on all sales. Black in evidence, said the arrangement was that McGloin be paid 20 per cent, of commission on sales completed during normal office hours, and 20 per cent, of the commissions on sales which were brought about, by McGloin’s working outside office hours. Mr Hearn said the reason Black engaged McGloin was that he wanted to cut down on his own week-end and evening work in the business. After McGloin had worked for about three weeks his wife, who became ill, asked him to stop working at nights and week-ends. Black told McGloin he could stay on at the work but could not expect to receive commission on sales which Black effected, Mr Hearn said.

He said there was a good deal of conflict in evidence between McGloin and Black as to the arrangement between them, and the Magi-, strate was not able to accept one witness as being more credible than the other. The Magistrate had had to look to other factors in reaching his decision, and in giving judgment for McGloin he had apparently based his whole finding on the entries which appeared in Black's books, said Jsr Hearn. He submitted that the

Magistrate had drawn wrong inferences from his analysis of Black’s sale transaction books.

Taking away the evidence relating to the transaction books the Magistrate must have been left in a state of doubt, and the proper judgment in law should have been a non-suit, having regard for the onus of proof being on McGloin or else judgment for Black, Mr Hearn submitted. Mr Godfrey said the Magistrate heard both McGloin and Black giving evidence, and believed McGloin’s evidence for which he found support in Black’s transaction books. There was ample evidence in the records to support the Magistrate's finding in favour of McGloin, he submitted. Referring to Black’s evidence on payment of commissions out of office hours, Mr Godfrey said it was quite impossible to say that a house sale was made between 9 a.m. and 5 p.m. Black sold nearly £90,000 worth of property in the 15 weeks McGloin was employed by him, and a lot of work in making the sales was done outside office hours, even if the contract of sale was signed in office hours.