SUPREME COURT Judgment On Farmer’s Claim Against Estate

Press, Volume CIII, Issue 30540, 8 September 1964, Page 20

SUPREME COURT Judgment On Farmer’s Claim Against Estate

Mr Justice Wilson held in a reserved judgment given in the Supreme Court yesterday that Edmond Cecil Trewin, a sheepfarmer, of Oaro, is entitled to judgment for arrears cf interest on £2 at 5 per cent per annum from May 17, 1957, against the trustees of his father’s estate.

Trewin (Mr P. T. Mahon) had claimed £3897 10s lid from Arthur Geoffrey Flower, an accountant, and James Henry Griffiths, a sharebroker (Mr L. G. Holder), as trustees of the estate of his father, John Trewin. This sum, it was alleged, was arrears of interest on a mortgage of £7972 at 6 per cent interest which another mortgagee assigned to the plaintiff in 1934. His Honour said the defendants did not dispute that if the father had been legally obliged to pay interest at 6 per cent from September 20, 1934, then the plaintiff, had been short paid to the extent claimed. However, they raised a number of defences, among them that the rate of interest was reduced under the National Expenditure Adjustment Act, 1932, and that the claim for interest, or part of it, was barred under the Limitation Act, 1950.

The plaintiff, in answer to the defence under the National Expenditure Adjustment Act, had filed an application under the act for relief, but, his Honour said, he did not think it equitable to grant the relief sought as the plaintiff had voluntarily accepted 4 per cent and later 5 per cent over long periods and from 1952 had accepted substantial money gifts from his father. In any event, he did not consider there was jurisdiction to grant the relief sought. Dealing with the defence under the Limitation Act, his Honour said that because the writ was issued on May 16, 1963, the plaintiff could claim only interest accruing from May 16, 1963, unless he could

bring himself within one of the exceptions. In seeking to bnng himself within one of the exceptions, the plaintiff relied on a clause in the act which said that relief might be sought from the consequences of a mistake, and that the period of limitation should not begin to run until the plaintiff had discovered the mistake, or could with reasonable diligence have discovered it. His Honour said that between 1934 and 1953 a marked change came over the economy, with the result that the father, instead of being in financial difficulties, fotina himself embarrassed by the size of his income, or, perhaps more accurately, by the high income tax he was obliged to pay and the prospect of high death duties on his estate. It was then decided that the father should pay the son interest on the full principal sum referred to in the mortgage, instead of on £6150, and at the increased rate of 5 per cent instead of 4 per cent. The accountant whose firm acted for both father and son, when making entries to this effect in both sets, of books, made the mistake of assuming the principal sum to be £7970, instead of £7972. That, in his view, was the only mistake made, his Honour said. His Honour found that the plaintiff’s actiion in not suing for the interest he claimed owing up till 1954 was not attributable to a mistake but to the fact he had honestly forgotten his agreement to accept 4 per cent. The interest accruing after 1954 was properly paid at the rate of 5 per cent per annum, but by a mutual mistake was paid on £7970 instead of £7972. His Honour said that, in view of his findings on the defences based on the Limitation Act, 1950, and the National Expenditure Adjustment Act, 1932, he did not think it necessary to consider the other defences raised.