LAW REPORTS.

Dominion, Volume 1, Issue 255, 21 July 1908, Page 4

LAW REPORTS.

FULL COURT. ' » THE MOKAU LEASES.'; JTI. REMOVAL OF A CAVEAT* 1 ' ■ " PROJECTED ACTION FRIVOLOUS,!?.. • At a sitting :oflthe...Full''Cfeu_rt;: ; yester^ay^ ■ when his : the Chief Justice (Sir, Robert Stotit) : and; thoir Honours! Justices; -'Williams,' Edivards, - Cooper, ; and Chapman ' present, jtrgunfcnt;was'heard relative to. ' a caveat forbidding dealings .. with /certain" ■ leases ofrportioiis of. the Mokau-Mohaliatino block, aggrcgatiiig over ,-14, 000 acros. ' " ' Mr. :-Campbell, |6n' ; ljetalE,oT'tiio" ■ v' . registered propn-stbrs "'(Sarali'.'';Jano,;Lefr.pyand others);; Mr. VMyorS' 'f6r J ' the" * DiStflct. ' Land Ilegistra^r,'Alr. , • bua Joiles; Mr. K. 0 .: (with liirri' Mr- : Ti'ingham) for the purchaser--(Mr. H. Lewis). ' " '-. ~ This the Couit by ! ' the' purchaser "bf;'.le(ases;;bf." certain ,"p;(i-ts, q| , " iheMokau-Mohakatii lo Block, Herrman Lewis, of Wellingtony to carder : the removal ;; ,p| : >a ■ caveat lodged against tho land'bytllr'.r'Jps-j Jiua '-Jones'. V; The facts weVe} briefly, that," in 1 1904',V Jories'/'c'ommenccd an ' action in the High Coprt in iEngland against Messrs;' Flower and Hogkinson ,(two English /• : solicitors) claiming, the 0f'"£433,000 for Blander of titleV 'It waa 1 alleged in the statement! of claim in thai-,!^tion>:that J plaiutiff. iad acquired a lease^-far_ 56 years.'.'of - acres in the Mokau dEsfeict'at ; a. lour'rental;; • vthat. : the land contamed.;vei;y;. Valuablofcoah , nioasures; that he went ); to,-England, to, float a company to work the coal; and.there' bccame tho client of,.'Flower;;.-that lie had -previously.' mortgaged ; his-,:intorcst ;in''.;New 1 Zcaiiuid/ arid that tlib'-morigagees"under the - mortgage; put the,'pToperty tip. for salepthat - - Le-agreed that they iSnonl-d ,buy;the ' and nbld 'liinL until thri-fcpm'rj ■ ■■• pany'.covild bß'-flbated'c tliiit'theiprbperty-.was-. . bought; by Messis. Mower, an.d ..Hopkinson,, . - i iwho claimed it as theix OTpii;aiid refused^-'to, ■ recognise - plaintiff as ' havingany'''.interosfc ; in it,-, arid that plain tiff -was--thereby— pre-. - vented from' forming a company or selling ;. ihe land. .Defendants denied tho agreement, and alleged . that they - liad,:, l)ought tho pro- ■ perty for themselves. . The-action was com-.- • promised by tho deferidfints , agreeing to givo ■ Jones two years ,to purchase' the" property back, and if he co.uld .r-ot purchase in that time it was' agreed tftafc the defendants, - . should ; transfer tlio property, to Jones ; on'" his giving , them , a' to secure tho ■ '.. Bum of £I§,ooo. : Plain'tifi : could'uYo'fc' .pur-'' : . ~ chase . thei , : land, ;.arid:;.ho; thereforo took a transfer-of/ it, - aridgave "a-mortgage to jsp;,,; -'cure-£18,000.; .; He -also enfered'into'. an uii-j . : dertaking to iodgo, : no'further caveat against"."-, • dealings with tho land. In ,1907, the execu- : tors?bK,deferidant Flower.'-(whoJ'had'. d.iedj in the meantime) sold.,'the A liirid through, the ; Registrar of ; the Supreme Court _ at,, New .! Plymoiithj.:-;Owih^":,to\i,drfan^ v >l!aWng' : been . . made in the, payrnenfc ,of principal "and inter ; . t est. Tho executors became the. purchasers themselves. Subsequently, the ; leases •: of parts of . the property were ;by;. Tierrman Lewis. . 'Av..caveatt ; was, .hpwevor,^' .'- lodged: by Jones to prevent; dealings with the- land, ,and it: was iri'. respect"' of this . caveat that the, application was now made to- - the Court. ~: ..-/-v.;.-...:.',. i'^i ■ ... The, igrounds ;on which: it; was contended - . that tho order with reforenco' tp '.the > . should be discharged were- as "follow: — '; 1. That the cayeat Was lodged by Johtis ' in contempt'.,of;' 't'wo 'brders. dated July ,27J - 1904, and August-vldyi.-IOOG,- made in the action in th'e>High'C6iirt';'of;";Justice in Eng- " ; land. ; " 'X.: j i:'".' 2. That lodged contrary!« wi- to 'good {ai&.'Wdrfn.-'l>feacli,:'of an under? 1; •••• taking by him idated/-November 16, ! pur suant io^h'e.Jabovprmeritioned.' orders riof;' ■/ to lodge of tho leasoV j' hold 'lands co^of -.-theftitle;;to".-tho Moliau" property, the;.subi'ect'-,of : tlio action in which -.: tho orders wero ihade. .. ■ 3. That," all ..matters,-, in. . disputo-, between Joshua- Jones "arid , others- wero settledi. by the orders of'; •ISo.4,'and' August 10, 1906, and the lodging, of tho, r : ; caveat was'.^an-attempt 'to- rp-operi ;tho; dis- - : :1 . 4.'v That; Jones -by- ! .the;''brde/S';in 'question (the-"orders ; having ;beeri; acted upbn'liyiall parties) was : estopped "from Ib'dgint 'tho .lcaveat or'.bringing ..into- litigation, 1 -ters settled, or agreed to ..bo. , by. the orders. : - - - 5. That Jones, by his .underfcakingri\lated ■ November 16, 1906, was estopped fi-om lodg- • ing the . caveat.' ■ ■■'' | • Mr.. Treadwcll, on -behalf, of; 'Mr; Jones, -. advanced argument at'cbrisiderable"'length. . . in support of the contention that 'tho caveat N onglit to bo extended. 'In ' cbiiclusibri, |,he. , submitted, that under air : the (circum.starices tho Court ought tp- consider tlio 'advisable- .. ness-, of ext_e.nding .tho, ordor, so : ' as ..to f;ivn . Jones ; an^opportunityto' bring - on:,;.aii lac-v-tion against: Flower's executors for roderiip- '•' tion of the mortgago; ———- ! The Court intimated that it did not con- -. ;.. . aidpr it. necessary .to call on 'counsel ifor the other parties to deliver addresses. Their Honours- thon proceeded to'deliver their • . . judgments. - - . ; . . Justice said the Court was asjced to 'extend'>a' caveat' that.vhadSbeen lodged against dealiligs in certain ■ leases of land- ;; •: '011 tho ( following grounds :'—(l) . That ; tlje,. ~r.. caveator had suffered,icertajri, wrongs -at |thja J . .hands of' ( -Mr.. Mowerj whoi.died, in SbpteiH"m -ber.. 1904 —and these ...wr.ongs ,• wero 1. foundfc'd "■:on circumstances;.which ;.occiirredf prior ■ Jib, ■ Ktho compromiso of. 1904;; (2) Assumingtliat' certain' transactions could. f - Jones'stilll had tho right ■ . gago oxecuted by; hiin - iii'' ; l9o6^'to' thiT-iixecjffv >•-■ tors of* tlip...dccoajSqtl. . TVjtlv "jieferciiGd ';'"po. the' firstpart"of -tho claim,- •h'isvopinion was v..j that if an action relative- to - the transifc-; tions which took place prior to 1906 h'afd been brought 011 in tho Supremo Court it would : havo been dismissed as being frivolous and without any merits. That, being tho position, tho caveat could no£ was estopped the he hiid .iria;def;irota'tnliiiri]g' '.tho trans-- • actioris prior'to 1904;. ho. was. debarred frofii foing back on tho contract. Seeing e was prevented ;from going into trans*, actions anterior;[to ; 'the : cbnipromise of 1904,Jones cpuia ; :thereforo oiijly-iiajapl.y to redeem und.er;;h'is ; -'riiortgago of:;1906.-;g.Hfi, was boutid ; ' by;:l;ip''inortgago', .and ,ori' DecemboivlO, 1906, ■' ;he-'got -notice of,-,demand,, aiid 'signbd tlio '■ . db.ciiment : acknowledging;,the receipt''of ,tlio ' demand.-- Jones : kriew-th'itj.th,^■'ojtecutcjjjs. ■ 1 were going' to sell,-and: accordingly' in due course, they proceeded toido so. Under the ;Npw Zealand Act, ..if a mortgagee .sold through' tho Registrar, tho sale -was ■ conclusive; Ho (His Honour):.)was ! nqt ' award ;.bf. .any poivor t0,,; albw redemptioh . m tho ' , case'''bf , '''sticli'''a'"salb' / \inlpss it kVSs. alleged-,that there was;sonic'fraud or hiii- , ' conduct. .; In the present caso .no % fraud $r .. misconduct ori-tbo-'part-'of .the 'exccutbrs y|s' ■■' alleged, and : in •• tho '-absonco' ■of • such. ';frari'd ' . or;' misconduct. tho .titlo; could'-;hot : .Jbb . ttt- ;-. 'tacked.'' Tho Court should 'riot extend tns< .-■■■■ caveat.' : l-sj. • Mr. Justice Williams, took-' the 'Samtf-vidsw..: 1 The-'Court 'could not,-go,' lie: said,' bohind: tlio' mortgago to determine • the rights of; tho parties. In order that' a caveat might bo" • . extended thero must 'bo- something which would lead tho Court, to...b.elicvo that';tho person making tho application had some chance of succeeding. Apart therefore; from ; the-proceedings which took place for re'dpmp- ; tion; in England 110 was perfectly satisfied , that'there was 110 ground for-extending! tho i - caveat. Tho matter didn't rest there, for a suit for redemption had been brought,in,England and dismissed for want of prosecution. Ho was of opinion that the Court had somo reason to .complain about .the way in which the affidavit of Jones, was framed.. From : any point of view there, was 110 r'eason why ! tho caveat should bo extended. •'■ The' liiotion ought to bo refused, for tho only effect of allowing the caveat to bo extended would be to cncourago fruitless and porfcctly ■ unjustifiable litigation. .... "... "..'.2 ! , Mr. Justice Edwards was also'of tho'same opinion. It was, ho thought, idlo to suggest that Jones could in the- present or • any other proceeding resort to aiiy gi-iov-ance or a.lleged grievance which took jlaco or was alleged to .have taken placo prior to the execution of .the mortgage in question or tho subsequent .agreement. Tho Bugrested' action would bo a frivolous one, and

tho Court could not cncourago any such protherefore, that tho cavfia^iughtlJnriSto bo extended: v Mr.ffrultice raoper held that, jfc would bo Jiojialess -io Pbritend that the compromise in question could be.re-opened. Jones' was, ho ~sai<r,~under~"ffie'*impression that lie had a , grieYa.ncp.juid npffJ'i'ig that tho Court could ■ -say Mvoijld that that was not tfie grievance ho might : :h%yo .had'.wasrcaJtiprpinised in 1904. Thero had bbon;:3o.'conduct on' the part of Mr. Flower and subsequently by' his executors iwhichvcbuld raise .any want of equity in it-hem.• 1 . Sir. Justice Chapman thought that it would ■be very unfortunate if tlio Court wero to "do anything which would in any way re'6pon"thb" matters settled by the compromise, "wliicli" was made *iiot only by consent and jyitji; the, advico of eminent counsel, but \ictecf.on-'and confirmed by Jones when ho "fbok'a title and indulgences pursuant to what was a.rrived at in tho compromise and ga'vfl.''riiortgageji'. to Flower. Ho could iiniagirio nqthing more complete, solemn, aiid binding than the successive acts subsequent ±o that compromise. Was it really conceivable,, Jhat put at i{s best Jones could mako ' cwtv.ar case for redeeming tho property as against Sir. Flower's executors and tho purchasers' or against tho executors alone? In .his opinion- the,.answer must bo in tho negative,jjjaiid therefore:, tho caveat could not bo •ex'foildecf. . * *' The order was, t-herofore, discharged, and coiUSTteelalloVda'Asainst.Jonos'as follow:— iFjft<&ttT£Umeas to tho registered proprietors;, fifteen guineas. Jpj tho purchaser; and ten guineas to tho Disirict Land Registrar. Mr. Treadwellj ~an behalf of Jones, asked for leavo to appeal' to; the Privy Council, and for an order.,. extending the caveat until tho appeal was determined. . f Tho. -Chief. Justice': Can' you; give: us ..an in-, „stanc,o .where ian^appeal-has beon allowed in a "case wbiclf'the "Court has held to bo frivol-. ' Oil's ? , r>)'■ i:' - i-. Edwards: You are asking lis lb ' prevent these peoplo from.dealing with .tlipir ,ojyn.. properties for two years-at least. ;■?. .Cpiins'blr: My clibnt-'is willing -to submit to any'tSrriis w'firctf'tlie Court .might deem, fit to stipulate. If necessary, we are willing to hring^into^.-Qouft,-within a- month an amount 'sufficient to : ';p!}'y '(iff tho' .. ■'- The Coii'rt-Wus&l 'tho application.