LAW REPORTS.

Dominion, Volume 1, Issue 169, 10 April 1908, Page 5

LAW REPORTS.

COURT OF APPEAL. THE OTEKAIKE ESTATE. PREFERENCE TO EMPLOYEES. ■ •' .',' V.The- sittings of' the Court of Appeal wero . resumed yesterday morning, when the cases between Hugh C; W. M'Kellar and W. W. . Mitchell, station .managers, and tho Otago Land' Board wore, concluded. , Plaintiffs \ seek to, compel the defendant })oard to grant tlicpi renowable 'leases, without competition, of allotments containing 3913 acres and 2367 acres respectively in tho Otekaiko Estate,, which, was acquired by thd Government for. closer settlement purposes. Their amplications were* in the first instance, " granted liy the Land Board, and the Minister gavo his approval, but subsequently tho : Minister withdrew his' approval,. and, tho • Board .declined the, applications: , ' I--' Mr.: Hosking, K.C., of Duiiedin (with him • Mr. \J'hite, of Dunedin), appeared on-behalf of the' plaintiffs, and the Attorney-General 1 (Dr. Fiudlay, K.C.) and , Mr: S'..' Solomon, ■ K.C., of Duredin (with them Mr. Richmond), tho. defendant Board. Y Mr. Hosking, iii rcpljj to the arguments adduced on behalf of the defendant Board, said the 'discussion had reduced the number of points to two(1) Whether tho decision of the Land Board was final for all purposes, and (2) whether the approval of tho Minister //.should :havo preceded the so-called grant. ■ Counsel iusisted on the finality of the Board's decision.: If, lie said, on the facts placed before it",,the Board came to tho conclusion, that the applicants can\e within tho section . in question, the Minister hijd a discretion to approve or disapprove. If tho Minister approved he adopted the finding of the Board, the grant wais - then-, complete, : and the facts' • could not be controverted. The' applicants then had a Parliamentary right. If-the submission were correct,, then all, he; had \to establish Was whether there/w ; as any difference, supposing; the approval followed tho • grant instead of preceding it.. He contended that, given thoso, premises, the Board's de-. cision .ivas final,-as against itself/tho'Crown, /and the,world—in fact, a decision "in rem. If that were not so the title would bo'open 'to attack.-'at any, time: _ -The. object of tho -- Act iii making the decision, of -the. Board . final was; to/ give' an assured title: .An application v as a matter which was a'.claim of : right-rat all events, a matter which' it was essentially /the. function of the Board ■ to detefmihe,' subject,:to' the right of appeal: An application, was.on/'offor,- arid, the so-called grant \vas the ; Board's acceptance;'. of .: the ■ offer,,.so that a contract was thereby formed, 1 but as the/:Board. accepted the offeK' subject to tho Afinister's approval' tho /contract cliclnot become, effective, until that approval granted.. The Minister had given his approval/snd the contracts -}iad-T)e'come, /effective. , ' .-The-Court reserved its decision: i AN EAST COAST CASE. .. / CLAIM . FOR DISCOVERY AND v , 'ACCOUNTS. Argument was also heard m -tho case bccween Wetini Itikirangi • and. others, and the East Co.ist Commissioner,: a-: claim for. discovery .md accounts. , Mr. ,G. Hutchison appeare'd on' behalf of tho-plaintiffs .and Mr. Bell, K.C. (with 'him Mr. Nolan), for the defendant. : -r : >-■ • - The'. statenientj. of; 'clairil / set ' forth"-, that . prior /^to/the/-constitution..of. tKe.'East /Coast.' Nativo frust«Laiids Board the Native Land •/' Court /the 'owners "Na,tive. ; custom, 'j"of>- tlio./•MaraelMa\Nd. , ''^/. r a! ,; blqck'- oontaihiiigi' about' 6703'.: toirei," tbv-r.be' ' plaintiffs and others;, . By subsfequent: order/ -/ the, same ;Court partitioned^off:/-a' of tlio blcck, r ' containing about '162(3'-aeres,' ' as, representing:the interests ofHh'e others/ who ■' bad sold to the Crown, /leaving'.tho./plaintiffs,; ,to}the;number' of 165j as; ; .tho owners':of'thV. lomainin'g portion,/cpntairiing'-5052- f acres,:.and kriown as :Maraetaha,'No. '2a, -1 section's"Sand3.'' Bj; 'Qrder-in-Gouncil, dated ; March 19,! 1903, /-James /■ Macfarlane, ..John Alfred Hard-, ; ing; and.Wtlter', ShrimptonSvere'-constituted; ' a body corporate under the namo of the East , Coast Native Trust Lands Board,' with^per-. petual - succession and a common seal. . By operation: of; the Act, the land then-' became; ..,yested'.in.-the Board,\for'-'an (estate/ of fee- ': simple in possession. ' subject: to' the - trusts affecting.the'/same'-' .-.-The land"was not- sub- , -. ject to : 'finy;morteage to Jhe;;Bahkj;as v re-? ■ forred to in/ tho Act /' of 1902.: On Or' 'about. . ; August" :10, /1904, the /Board ' received , / i tho sum- of £4.066 2s:-, as upon the sale of ' the ; land. ; . On- thb . coming .into'•operation of / Section 22- of the;' Maori Land Claims ■ j^d- / justmont : and ■ Laws / Amendment Act,' 1906, : t;io Board was - dissolved, and : John . Alfred - Ha'rding f was ( appbinted Comniissioner: in suc- • cossion - thereto;,; Upon -tho; death'/of Hard-;.;in'g,/;in-,the /year.>l9o7,"- the defendant was' appointed; and still-continues-to''act as Com- '. missibner.' The defendant had rendered an account to the plaintiffs ' of ; the : receipt of . tlie purch:ise;.moncy 'bf the - land,i £4066 25., and an allowance for interest up to; March -. 31, :1907,/ £498,155. ;5d., and 'showing deductions amounting-to/£354 -ls'. : ,'-some of /which ' plaihtiffs'dbjecijed:to, but'the' dofendaritvliad - ' l i»fo^O,j».vp«iy-rtho' - ..balanpe; or." any .-.■ other.: amount' -to. the plaintiff.i' ori: any of thorn: Vi'horoforeplaintiffs claim■ /- : ,■■■"..' j. , : >'. .' (a) discovery' in-:.-respect"ito'.■tho',,.copies: of //th'o: - 'minutes:/of : .the. Board-relating /'to the said of the land, including' the' resolution of the; Board to- sell the land; and tho terms of ;sale, with mentio'n'of the .members of the /•'Board - present, copies' of' all -tenders,, letters, . or-other/communications, : whothor formal or ; • otherwise, as to tendering or offering -to purcliaso the land. '• ■ -' y-; ' /(b) That', accounts -bo' taken under ' the • direction of tho Court. as to-- all moneys re- ' ceived for- or.t on. account of . the land by tlio, Boa.'d, or by . the predecessor of x the defendant or by himself .as > Commissioner . in •• relation thereto., . (p) An/order or/decree that tho' balance, . -which may found- to -bq; payable, in.^re.s- / pect -.of ; the'land,', or \ incidental thereto',' be ! paid into ,Court,' to be distributed " as - .the Court' may direct, and - /" ./ '/;,, ;,' , '";.(d) or other relief- as. in ,the ; circumstances .niay: be just; : /.,. .'.; - / /.The /defendant,- by his. statement of- defence, stated* that there, v/ere.tivo'separate . decrees made' by. .tho' Validation.'Court;'on August "• 3,"-1896, one relating to, the Maraetaha/No. 2a. block, Section 2, cqntairiing ,254 i acres, and the. other relating to Maraetaha N0.;,2a 'Block; :Se'ction 3, containing.. 2541 . acres. . ,By- Section ,6 of, the. decrees, it was ordered that the trustees, and one 11. C. Jackson / should, be . receivers,' and that' the acconnts sh« uld ,bn ! - rendered to and .'passed by the Validation-Court. It was not correct tostate .that tho../plaintiffs/ had- been''determined to be, tho owners .of the land. -The ' dofendant: admitted that lie had. refused' to supply.vopics of certain documents, but averred that'he,did'supply,copies of deeds and of accounts relating to the land; .1/ He averredas matter; of/law':— (1) , That it was impossible, for the Board or for-the,-defendant to ascertain and:determine to what,persons and"in what pro'por- / vt.ions- the; moneys,'the proceeds of the 'block, /.belonged. . .' ■» . [2) That such moneys-' were: all' subiect'to'. be applied to .the general costs and charges of-.'the genera! trust; esf.afe~-ofr .Tames Carroll' . and /Wi Pore, and to the liabilities-of those / trustees, and -to tho right- of' indemnity, to : those trustees out ,of their,-trust e.°tato, ex- 1 cept only to. that part of the : liability,w'hich' was .inci/iiTed to the' .Bank of, - Np\v Zealand and secured bv the/general and sprcLV securities, and ,that the whole/of such ~inqnevs - having . liien paid /away. by»tho ■ Board l iii dis-' chargo-of. such, liabilities, there , no ■ acrniin't to be taken- this:, action. ' V /. -;(?V That- the Validation- Court nnder its • ■sovoral . Acts, and .under 'thbV' term 'of the Decrees of that Court, and under the pro- • visions of. .ShWcctiori (3) of Section 22 of .the .Maori/ Land Claims ".Adjustment nnd Laws' /I'leridment Act, .1906. and under Section 1] .of tb" Maori: Land Claims ' Adjustment and J:Bivs' Aroendment' Act/1907, has exclusive ■jurif'Hction to/determine all matters of ac- ■ ennrit in; rqsncct- of the trust .blocks vested in the Board. .. ' , - -/: .■. ■ -'■' ■"".' ■-- '/(4) That eien if such jurisdiction bf '.tho , Validation Ccurt be not.oxclnsive, the power and duty of forninlatini; n, scheme "for equalising in equity the liabilities icif the several /blocks has b?en conferred,by Parliament unon Iho Validation Court aad that the Valida- - • ,/. ; -V , ' - ' - v -.' ■- .'

tion, Court is now proceeding in the matter of such scheme, and that it would bo contrary to - the statutes to proceed in. this Court- with tho determination of matters ol account. ': '• .(5) That the>effect of-tho statutes is tc provide by a/schemo of. the Validation Courl for the nvc'nt which has occurred in tho ease of the two blocks in question; inasmuch as certain other blocks havo been completely sold and disposed of, and certain other blocks remain, l nsold, and the distribution of the liabilities is the duty of the Validation Court. ' Argument had not concluded when the Court adjourned until this morning.