CITY LAWYER ADDRESSES P.C.

Press, Volume CIII, Issue 30470, 18 June 1964, Page 18

CITY LAWYER ADDRESSES P.C.

(N.Z.P.A.-Reuter—Copyright)

LONDON, June 17.

. Viscount Radcliffe and four other Lords of Appeal on the judicial committee of the Privy Council were addressed yesterday by Mr J. R, Woodward, of Christchurch, a member of the New Zealand Bar, appearing for the Bank of New Zealand in the appeal from a judgment of the New Zealand Appeal Court brought by Farrier-Waimak, Ltd., shingle merchants and contractors, of Christchurch.

The Appeal Court found that a mortgage registered by the bank against 11 acres of land in the Christchurch survey district took priority, over liens registered by FarrierWaimak. • •

The liens were in respect of £12,097 and £1765 allegedly due from the Hornby Development Company, for sewerage, road-making, and other works carried out by Farrier-Waimak under bontract in connexion with the development of the 11 acres and another block of 15 acres as a residential area.

Yesterday was the third day of legal argument on the issue whether the liens, registered in May and June, 1961, took priority over the bank’s mortgage, which was presented for registration the previous January and finally registered in July, 1961. Mr Justice Henry in the Supreme Court decided the issue in favour of the. bank, but his finding was reversed by the Court of Appeal.

Mr Woodward said the basic facts leading to the present conflict in priorities was .that while a caveat lodged by a finance company prevented the bank’s mortgage being registered until the ' finance company’s consent had been obtained, and while the bank was endeavouring to obtain this consent, the liens—unaffected by the existence of the-caveat—-were. able to pass the mortgage in point of time of final registration.

The mortgage, produced on January 30, 1961, was finally registered on July 26 with the consent not only of the finance company, but of other caveators after the bank had had "to fight the rising tide of requisitions.” The bank had contended all along that it had never withdrawn its document from registration, and the fact that the district land registrar preserved the same number was some indication that he did not regard it as. having been withdrawn.

. Mr Woodward went on to contend that a lien was not an “instrument” within the meaning of the Land Transfer Act and accordingly did not derive any priority. Neither was priority affected by the bank’s endorsement of the words “subject to the liens.”