SUPREME COURT

Dominion, Volume 1, Issue 229, 20 June 1908, Page 13

SUPREME COURT

(Before Mr. Justico Cooper.) ■ RESERVED JUDGMENTS. Hi? Honour Mr. Justice Cooper gave his reserved judgment in the case boiween tho Borough of Dannovirke.andvtha Mayor (Elans Mathson Ries). In tho judgment, his Honour sa:d that this was a'motion for. a writ,of mandamus compelling tho defendant to put qertain motions, which he'had refused to put,.as he held that they ware not .in order;. . The.defence maintained'that'the matter must le left to tho Mayor,-as the court had no jurisdiction. Tho defendant alleged that tho decisions wero given in the exerciso of his discretion, in good . faith, anil, he believed,''with the approval of a majority of tho members of tho corporation. "If this court has' jio jurisdiction," said his Honour, / ' 1 to interfere,' -then tho Mayor practically controls/the whole 'of tho municipal affairs of the,.hi/rough to this extent, that without his permission nothing can be done, and a deadlock must ensue. Tho councillors. ..unless they can invoke .the assistance of the, court, ..must give way to an autocratic; Mayor, and eonsont to only such, ' municipal; business being considered as in the opinion ' of; tho '.Mayor is : likely to bo approved of by tho ratepayers. . If this contention were , given effect to, it' would bo equivalent, to holding that- there Was no , ■ necessity for a council; at any rate, it would mean that the cojincil would be under, tho absolutb control, of'the Mayor. In the, proBent; case, ( the defendant claims that his action'..has', been" approved of at a public meeting ,of ''tho'inhabitants of Dannevirke, and that on.this broad ground he is'justified | in; his action. ; This is an; assertion that .tho 1 Mayor,.can,i if 'lie. thinks that ho is backed by a''section .of the ratepayers of tho borough, councillors, who aro entrusted by utjitnte with the administration, of, , the' affairs'iot/tho borough,' from exorcising \ their statutory.'rights, and performing their statutory.)'.duties, and is equivalent |to saying. thaV'B- Mayor and an irresponsible bootion/of wo ratepayers can' deposo tho council. v Such •an argument, if given effect to, would destroy tho system of local government. It is clear that a Mayor has' no such right or power. In my opinion, the court has, jurisdiction to entertain the motion. If a notiqfe of motion lias been duly given by a ' councillor npin a matter relating to the business of. tho .borough,/then such councillor hai.a legal right to havo the motion brought before tho'couu'cil, arid tho Mayor, as chairman of the;meeting,.i3 bound in law to allow it to be seconded and discussed and put to-the vote- of tho. meeting. If'ho refuses •\ to do so, then,.in my opinion, this Court x has power by mandamus to compel him tc do so. -There is, it is true, no direct authority on the matter. In my opinion," he concluded, :"the real truth of tho matter is contained in tho defendant's statement that, ho belioved.Jie was.acting in tho best interests'of the ratepayers and inhabitants of'.the borough, and with tho approval of the.great majority,''and that,he.ruled these motions out'of "order because at a meeting of the'-ratepayers, held- on December 12, 1907, a : majority Voted ' against the work being donel He further supports his action by . stating- that on February 25, 1908, ho. convened a meeting of tho ratepayers, and a large majority of those present endorsed his- action. The defendant was'.under a legal- duty to -receive these notices' of motion and to put them to-the voto of tho council." ' ■

His Honour held that the Mayor's action in refusing'to accept the motions regarding High Street and the report of the Public Works Committee were ultra i vires. He would ;be prepared to, make :an order for mandamus, but it would have to be in the office for fourteen days to. allow notice of appeal/ 1 being given if.':desired, .If appeal was decided upon, ho would stay proceedings until the Appeal Court had given its decision. _ . . 'Mr." Morison: and Mr. D. M. Fjndlay appeared "for defendant, and Mr> Slcerrett, K.C.,;>witb him Mr. Kirkcaldie. for plaintie. ,; the bannatyne estate. His-. Honour also gave judgment in- a" special case • for the opinion of the Court between Helen Sophia James (plaintiff) and William„- Kinross v White and Frederick Ar-nold-Baker, executors arid, trustees of tho will of the late W. Bannatyne (defendants). Under' the will/ Miss James,, of New South iWales, ; was entitled to an annuity for life, and,-'the estate consisted of. land mortgages,, and the question for the Court was whether tho'plaintiff, who".had to pay income-tax, should also pay land tax. Had . she lived in ;New Zealand, no income-tax would b? chargeable; , • ~ j •In his Honour's opinion, an . annuitant, and certainly, one .whose annuity is not directly chargod upon land, is not the owner of land, within the meaning of'tho Act of 1900, V and is not liable to. pay or contribute to the 1 payment of land or mortgage tax undor that Act. An annuitant, whether the annuity is: charged on the land or not, is liable to pay income-tax in respect of the annuitant if the amount of the annuity, together with;.the other .income of the annuitant exceeds the amount ■ of income exempted from incofne-tax. ■ ■ His Honour decided the issues as follows: —" Tho plaintiff is not liable to contribute to the land, mortgage, or income tax charged and payablo in Ner.' Zealand upon tho .land, mortgages, or incomo of the trust estate of the deceased. The defendants aro not., entitled to "deduct from the plaintiff's annuity, any sum in respect of a contribution to tho land, mortgage, or income tax paid by them upon tho land, mortgages, or income of the trust, estate of- the deceased.'They are liable under Section II of the Act to make a return on behalf of tho plaintiff of her income .arising from the annuity; and any inoome-tax which they pay in the future assessed .upon 'such , rcttai they are entitled to deduct from future payments, of the annuity." Mr. Blair appeared for plaintiff, and.Mr. H. D. Beil, Iv.C., with him Mr. Hadfield,' for defendants.' TOWN' BELT LEASE. ' His Honour was' called upon to decide a case on appear from tho Magistrate's decision. The case was between William Tonk3 and the Wellington Cjty Corporation. The appellant : was a lessee'from tho Corporation of. a part of the town bolt reserves, under a deed of lease dated March ,7, 190 G. Tho'area'leased was 10 acres 3 roods 10 perches, . known, as/lot ll'-Eastern District of tho Reserves.' The appeal was from a judgment by the Magistrate for rates amounting to £6 17s. 6d. for tho year ending March 31, 1907. _ The following are tho points of law stated in'tho'case:—That the appellant is not an occupier within tho meaning of The Rating Act, 1894; that he is a mere liconseo arid not a lessee of the land rated; that tho covenant to pay. rates applies only to rates properly payablo; that tho plaintiff being itself the owner of the land, the land is not liable to bo rated. By tho consent of the parties the" action was treated as an action upon the covenant to pay tho rates as well as an action to recover the'rates from tho appellant as occupier. • The Magistrate held that the appellant was not an "occupier" within tho meaning . of \ The Rating Act, 1894, but that he was liable upon his covenant. Both questions were argued upon tho appeal, Mr. O'S'nca, for the Corporation, contending thatth? appellant is liable.as "occupier" of the land, and also upon the covenant. ■ His Honour said: "I am of opinion that tho hppellant is liable upon his covenant. The land referred to. in the deed is rateable property; it is not within any of the classes of land excepted from the definition of ' rateable property' contained in t,he Rating Act, and it has been entered upon tho valuation roll as rateable •, property, and in tho rate book of the respondent Corporation, and particulars in respect of the property havo also been entered in tho rato book. A rato has, in.fact, been duly struck in-reference to this property, and levied by the respondent Corporation. Mr. Blair has argued that tho fact that the Corporation is itself tho owner of the property relieves tho appellant . from liability, and that tho words 'payable to t-he landlord' refer to the impossiblo contingency

of tho Town Belt being -hereafter included within the boundaries of Some other local ■ body, who could then rato tho respondent Corporation as owners of tho reserves and rocovor tho rato from it. It is, in my opinion, quito clear that this was not intended to be tho operation of tho covonant. . The suggestion that it was is purely fanciful. There is nothing to prevent the Corporation from rating its own rateablo property, and from paying tho rates struck in respect of such property and charging the amounts of tho property with the rate, and crediting the general fund of tho Corporation. Tho Corporation is itself within the meaning of tho Rating Act tho ' owner ' of tho property, and tho property is rateable and has been rated. In this senso tho rate is payable by the landlord within tlio meaning of the covenant. Somo reasonable meaning must bp given to the words in the covonant, ' including particularly those mado and lovied by the Council of tho City of Wellington.' Mr. Blair's contention is equivalent to treating ; these ■words as a nullity, for ho argues that under tho instrument in question no rates.can ever be pa}'ablo by cither tho lessor or the lessee, and, therefore, that the words are meaningless, but, in my opinion, tho covonant was intended to apply to and does include the rates entered in the rato book in respect of this property; and tho latter words of tho covonant wero inserted to rendor tho appellant -liable, although lie was not technically tho occupier of the property, to pay tho rates levied by the Corporation in respect .of this property in any event. I think the covonant sufficiently expresses this intention, and that the judgment of the Magistrate was right. Tho appeal is'dismissed with £5 ss. costs." _ i ■Mr. Blair represented the appellant, -and Mr. O'Shea appeared for the Corporation. .DEATH LEGACIES, In the afternoon, His Honour heard an originating' summons to detemino a question arising under tho will of tho lato Hon. George Marsden' Vv'aterhouse, formerly Premier of Now , Zealand, who died ■ou August 6; 19(16,, at: Torquay, England. By his will® and by twp codicils ho bequeathed certain specific legacies : and certain residuary legacies to certain legatees residing *in New Zealand, Deceased died domiciled 'in England, and the English Revenue Department claimed duty on theso legacies. Tho trustees of tho will wero advised that they' were responsible for this legacy duty, and this originating summons was brought to ask tho Court iu what manner, these legacy duties should bo paid. Clause 8 of the will proridod that. in_ the. first place, and out of tho first monies which should como to thoir hands, tlioy (tho trustees) should pay all his just debts and testamentary expenses in England and succession and death duties iu New Zealand or South Australia, bo that every legacy and bequest should be paid free of succession and death duties and expenses of all kinds. Tho Court was asked to decide whether tho trustees, in paying tho specific legacies, should pay them duty freo, or should leave each specific legatee to pay this legacy duty out of his respective legacy. Tho seoond quostion arose in this way: Some of the residuary legatees were blood relations of the testator, and the legacy duty payable in respect of their legacies was 3 per cent. Somo wero strangers in blood, and tho duty in respect of their legacies was 10 per cent. The question for the determination of tho Court was whether tho trustee# should pay to each residuary legatee his legacy, leaving him to pay' the legacy duty thereon, or whether the trustees should deduct tho whole amount of tho legacy duty payable in rcspcct of all tho residuary legacies to tho revonuo authorities* in England to divide the balance among the residuary legatees. • His Honour decidedfton the first question that the duty on specific legacies should be paid out of tho general estate, and on tho second question that, the whole amount of duty should first be deducted by the trustees and tho. balance divided amongst the residuary legatees. Mr. H." D. 8011, K.C., with him Mr. Fitzgjbbon, appeared for tho trustees. Mr. Fitzgibbon also appeared for tho specific legatees, Mr.' Ostler' appeared for tho residuary legatees, who wore blood relations of thote's tat-or, and Mr. H. F. Johnston for tho residuary legatees, who wore -strangers in '. A MORTGAGE CLAIM. (Beforo Sir. Justico Chapman.)

An action was brought by ■ threo trustees and executors of William Parker, deceased, against John Judd, a Carterton farmer. Tho statement' showed that Judd lent £700 to Parker on a mortgage. Tho mortgage was prepared by Henry Stratton Izard, .solicitor, of UrOTtown, -who was siibsequsntly convicted of fraud. Mr. Parker wanted to call in tie mortgage, and ho approached Izard, and asked him if Judd would accept payment before th'o mortgage was due. Izard said ho would interview Judd, and he was given specific authority to receive tho money. Judd, on the other hand, swore tliat ho did not givo any specific authority to Izard to. roceive payment. In tho meantime, .Parker had died, and his executors and trustees, relying on Izard's statement that ho had authority to .reccivo tho mortgago, money, paid this ,-6700 to Izard, and it was misappropriated and lost. Plaintiff then refused to pay any further interest on the claiming that Izard, having received the money, as tho agent for Judd, the-mortgage had been been paid off. -Judd refused to release tho -nortgage or to give up the title, and this action, was brought for a decree ordering. Judd to give np tho .title, and • release tho mortgago. His Honour heard the argument, and reserved his decision. Mr.' Skerrett, K.C., with him Mr. Martin Luckie,' represented plaintiff; and Mr. Bell, K.C., with him Mr. Ostler, appeared for defendant.