Sharivari must be returned

Press, 21 February 1980, Page 20

Sharivari must be returned

Mr Justice Vautier last evening issued an interim injunction in the Supreme Court at Auckland directing Patrick Shaun Wilson to return the stallion Sharivari to Alton Lodge Stud at Te Kauwhata.

The judge did so after hearing evidence and submissions on a case which followed the removal of Sharivari, one of New Zealand’s leading sires, from the stud on February 2. The owner of the lodge, Edward Leonard Haydon, earlier granted an interim injunction for the return of Sharivari to his stud.

Trevor Kearney, a bloodstock agent employed by Dalgety New Zealand, Ltd, was named z ‘rst defendant; Dalgety New Zealand second defendant, and Clive Milne Denham Kerr, a solicitor, third defendant. Mr Justice Vautier heard submissions and evidence in support of an application seeking the rescinding of the interim injunction order. Mr G. P. Curry appeared for Mr Kearney and Dalgety New Zealand Ltd, Mr P. Towle for Mr Kerr, and Mr D. J. Spencer for Patrick Shaun Wilson, the man said to have bought Sharivari and who had an interest in the proceedings. Mr A. W. Grove represented Mr Haydon. In an affidavit to <he court, Mr Kearney said Mr Wilson approached him about acting as agent for the purchase of Sharivari. Accompanied by Mr Wilson, Mr Kearney flew to Wellington on January 30, where, he said, he met Mr Kerr and signed all the necessary papers to effect the sale and purchase. Mr Kearney said he and Mr Wilson went to Alton Lodge Stud on February 2. He heard Mr Wilson talking to John Harold Knight. Mr Kearney believed Mr Wilson explained to Mr Knight that the main purpose of the visit was for Mr Wilson to take possession of Sharivari. . . Mr Knight was shown copies of documents indicating that Mr Kerr had power of attorney for Mr

Hastings Harcourt, of California, the registered ' owner, of Sharivari, two letters, and a copy of an order from the Central District Court of California.

Mr Kearney said that after Mr Wilson had explained the. situation to Mr Knight, Mr Knight simply turned to the witness and -asked if the documents were genuine. Mr Kearney indicated that they were. Mr Kearney said. Mr Knight caught Sharivari, led him to the stud yards, and on to a truck. The witness said Mr Wilson told him a Mr P. Geary was to be the new owner of the stallion. Mr Kearney believed Messrs Geary and Wilson were forming a company to own the horse. Questioned by Mr Grove, Mr Kearney said he drove the truck on and off Mr Haydon’s property. He said the horse was then driven to Puketutu Island in the Manukau Harbour, where, he was told by Mr Wilson, arrangements had been made to put him. Mr Kearney said he believed the island property was part of a trust. Mr Grove: What are the names of the people who you believe tb be associated with the trust?

Mr Kearney: The only name I am aware of is Sir Henry Kelliher. Mr Grove: In whose care was the horse left there?

Mr Kearney: Staff on the property. The witness said he believed staff there were employed by Sir Henry Kelli-

Mr Kearney then said Mr Wilson had told him that Sharivari had since been removed from the island stud but he did know his destination.

Asked why he had not told Mr Haydon that Dalgetys had sold the valuable •stallion .to Mr Wilson, Mr Kearney said that when he saw Mr Haydon on the Alton Lodge Stud, he had been some distance away. The witness could not recall if he told Mr Knight he was a representative of Dalgetys.

Asked by Mr Grove if he intended to /try to discover the present whereabouts of Sharivari, Mr Kearney, said: “At this stage, no.” In answer to Mr Towle, Mr Kearney said he was acting on Mr Wilson’s instructions when he took Sharivari to Puketutu Island. Mr Justice Vautier asked: “It Dalgety New Zealand, Ltd., in the habit of going on to properties and picking up bloodstock of this value without seeing people in control of these properties? Mr Kearney: To my knowledge, no. Mr Kearney said he was aware that of the $lOO,OOO sale price for Sharivari. Some $lO,OOO had been paid Out. ;>' ' The judge said if did not seem very responsible that neither Mr Kearney nor Mr Kerr knew where the stallion was now. ' Mr Kearney said Mr Wilson had told him he was not going to say where the horse was. His Honour: Even .though the owner is still owed $90,000? Mr Kerr told the Court he was aware the Racing Conference was holding up the transfer of registration for Sharivari pending the outcome of the present hearing. In answer to Mr Grove, Mr Kerr said he fulfilled his part of the arrangement by executing a transfer of ownership of Sharivari and passing it on to the agents of die purchaser. Mr Kerr said Mr Wilson had paid $lO,OOO into a solicitor’s trust account as a deposit for the horse. No other money had been received from Mr Wilson so far.

He said he learned about a fortnight ago that Mr Harcourt had begun proceedings concerning the California judgment in Hamilton. Mr Kerr said Mr Harcourt was interested in repossessing Sharivari in 1977. Mr Grove: Why did you not do it? Mr Kerr: I had no clear instructions jto take such steps. ' .. His Honour: Where is this horse now?

Mr Kerr: I don’t know. I understand he is in. the Auckland area somewhere. Mr Haydon told, the Court that. Sharivari (had bad a very heavy season as a sire and was being let down gradually when he < disappeared, • Under - questioning by Mr Towle, Mr Haydon,said: If he was in the wrong hands and covered additional mares, it could be.-. very serious for him. He said that since. Sharivari had been taken away from his stud, hfe had had to turn away people ■■ who sought bookings ■ for (their mares with the, st allicin. Mr Haydon' said Sharivari had been given a book'value of $l2OO when Mr Harcourt said about 10 years ago, that the horse could not be returned to racing. The horse had broken down twice.,. He said: “He was sent to me as a challenge to get him racing again.” Sharivari, he said, was outstandingly successful in a short racing career and it was then that Mr Harcourt decided not to honour arrangements which had made Mr Marvin Roberts, Mr Haydon and Mr Harcourt, equal part-owners. His Honour rejected argument that Mr Haydon had not supplied full information in support of his interim injunction application. Mr Towle submitted the action against Mr Kerr was ill-founded, because it was clear that at all times he was acting for the person he believed to be the owner, and contracted the sale to Mr Wilson on his behalf. It was quite clear that on receiving the offer Mr Kerr acted On authority for Mr Hastings Harcourt, of California, the registered owner of Sharivari. He was personally not therefore liable for any action from Mr Haydon. His Honour said the interesting question was whether a person coud go on to somebody’s property and take something without authority. “Does he not

incur same personal liability i by doing this?” Mr Towle said his client • merely authorised removal ’ of the horse, from Alton : Lodge.' i His Honour: There is . something wrong with this arrangement Do you mean • body’s house, take some- ’ to say I can walk into somei thing away, and then say I I can’t give it back because it ' has been sold? Mr Towle said his client ■ ceased to have control ' over the horse and, therel fore, responsibility for what i happened to it.His Honour said if was a “strange, strange, transac- [ tion.” , Mr Towle also submitted r there was no evidence to r show that the horse was in ' danger and earlier evidence , to this effect was specula- ' tion by the plaintiff. Mr Curry said his clients ’ could not return the horse because the injunction stated the horse belonged to the > plaintiff, and his clients did i not know of any such horse, '■ as described by the ini junction. ■ They understood Sharivari i did not belong to the plaint- ■ iff and, therefore, could not I obey the injunction.

The defendants did not retain possession of Sharivari and, therefore, the injunction to return the horse was unreasonable. His Honour ordered that

the defendants each pay $2OO costs to the plaintiff, Mr Haydon, and disbursements in respect of their motions before the Court. He declined an application by Mr Kerr to be struck out of the proceedings.