COURT OF APPEAL.

Dominion, Volume 4, Issue 939, 5 October 1910, Page 4

COURT OF APPEAL.

f HELD IN TRUST. :. A ' = . I?"..•'» V : " '• !• BY ; WHOM AND FOR WHAT? K" A VALUABLE ACRE. f,4': The t-erins of : the trust connected with j. the Valuable piece of public -estetb deli# scribed as tlio old Supremo Court site, ;• in Auckland city, ',wero. further discussed [; ' before the : Court •of Appeal .yesterday. The' Chief 'Justice '(Sir Robert Stout); fv;: presided,; and with -.him., on-, tho, Benph .were- Justices: Williams,.Edwards, Coo.per;'and .Chapman. ■ - question' before . the 'Court -.was Bjwhat'yight,/title,Vor interest;- the Auck{W. l ]aW'-' : Mubati6n;Vßoard has in the 111V' - corae from the land mentioned, but the discussion of iliis question involved a h number of others, ;and:.the.-:represehta-s tions of several parties had to be heard. : This Hand itself is 1 a bout.; an aero. ;in ,ex-" ft v tontj and is situated/in -/the heart- of Auckland; at the of Queen Strtet' : ana ; Victoria Street. 'It is. valued ! at. £250,000.' • The. Auckland Provincial' ' Council bought it from the General Govr. •• cmmeiit' : under 'an'-Act of 1864 lor £25,000: 'The Supreme Court Site Leas-' |i' ■' ing Act, .1375, made-.;it- ■* ah „ endowment | > foreducational: purposes ,in. terms of the; |; : provincial. Education Act, 1872. Other raising of. '.a: [-- loaii 'of £25,000 by debentures chargedl :'.;'on -the land;. £3000' to'go to the Auckj land-Board of Education, and the balIr i-'ance':to/;be'used in' : :erM.ting , additions' j: to "the : Auckland Provincial. Hospital, r , Tho Hospital -Reserves Act, |:^ ; /';lßß3i' ! vested';the endOwinerit; in; the Pub-! r-./lie authorised' him, to T grant leases of tho land' and to pay inI'. terest>iid sinking fund out of tlio in-' j. eome. A clause, in .the Special-Powers [ and 'Contracts Act, 1886; authorised the | Public. Trusteo to pay. the surplus 'income, w'maining after providing for payP^\iriefttvoifynterest''^ and the money." has .been paid accordingly. In IJune of:this year the'loan moneys raised, t; in -1876 : wore 1 finally paid. off, and the j* Auckland Education" Board thereupon ; claimed; from the Public Trustee" tho ( -benefit of 1 tlio whole endowment, ,i Tlio K^;vj'¥^bUc N repli©d-.\tiha'b;'fc'ho' i r position'' /i^uirMrjudicid'myes^ation':!//Hejiee. t-Mthe'' present'. proceedings, which' began j. with an application by; the Auckland Edui • catioii Board to the Supremo Court for a . declaratory judgment, and were removi' cd by-'consent of the 1 Court.of Appeal. '{v.--!: Mr.i Jv R. Reed (Auckland) appeared' for the Auckland Education Board, Mr. 'W. Salmond (Solicitor-General) for [■■\fw;tli« : .PTiblio';Tfustee''Md , f6r»\,the;ltoirter'. i.v. of Education; Mr.,H. P. Richmond for s the Auckland Grammar School Board; i and.Jlr; C..-P.'Skerrett, K.Ci, with him ' -Mr/ .R. -M'Veagh (Auckland), for tho 'Auckland Hospital-and: Charitable Aid Board. ■ ' Crammar School's Claim. ~ . - Mr.Cßichmond said that his clients .(tho -Auckland Grammar School' Board) : did not mind, in whom-'the'trust was vested,, but ho contended! that the Auckland Hospital- Reserves Act, 1883, did -.. . not Walter; the! original; object .of; "tlio Sftendo%riei(£ ;.Ho. alsi£.; j&bjnitted: that . - the Education Reserves Act, 1877, ap- ■ • plied-to tho ' property, and it - should remain vested in tho' Public' Trustee, ' "• who. should, administer it in conformity •' '• with'.that .Act. - If' that' view of : tho : ; ...matter prevailed,'the .Grammar School -: Board ; would get 'some benefit from tho "The Ultimate Trust." - / Mr'.' Skerrett prefaced- his' argument .>vith : an-excursion -into.remoter history than:had yet. been touched in tho case.' He quoted an Act of the - General . Assembly-of 1858. to .show that prior' . j.to..th'at date the land jn question,had : . been, "s?t apart" .as.a'publio reserve, j aud-idiSvrnot 'originally!;-; become^' such' ; through purchase. Ho:also'alluded to, I the education system of tlio provincial . days;'', pointing, out. that there was aa h / Education Board province, and f i^ithitjthe' cost;:of education-was. purely a local charge. There was an annual ' - 20s, per annum on : the guardian of each child to the'-number of four. The .to-ust. was, therefore, he submitted, j%.:' -in j-relief .;pf-*^ ; l6cal;'taxation,' ; - and was partly used for..- local. hospital: i .purposes, which would-otherwise havo :. boen. matters for local charity or local i -■ taxation., The : main question , in;. the' case,: however, was: What was ;the ul-; ni" .timat-e trust? This - was contained in ' . tho Supremo Court Site Leasing Act, :<v 1875,.-and • had-never- been-altered, -re--vok«l, ..or ,', even ' suspended. Tho ultimate 'trust was that-,. subject to the -.. . repayment -of -the loan/- tho land was to be. held for educational -purposes in •" ' accordance with the.Education . Act. -: passed by - tho Provincial Council- in 1872.- That was tho key to the problom : before tho Court! Tho Auckland ' Hospital. Reserves Act, 1883, did -not j;'. Valter: ;tl»vultimate i^meirely: . directed tlio intervention of . a new ;. trustee.. .Apart ; from, that it confirmed tho trust as expressed in tho Supremo ! Court Site Leasing • Act, 1875; by; providing that tho land should "revert" . as a reserve: for education purposes.; • . "Revert" meant to go back, but it would havo . been ■ rnoxer-correct to say- •, "remain,!' because, the. original • trust. not - of-' redemption'remained unaffected. -Coun-. \Bel'. : furth^rcW6U^[;tKP2:l;i : of Provinces;; Act; 1873, tho Educa- ; 5 -'tion-" Board- Act, : 1876, and . certain other statutes i that had been referred to did not'.really affect-the trust . Tho • • position of the; Public Trust-eo under.' ff.the . Hospital.' Reserves Act,: ; 1883,-was .'that up 'to the :rej)aymeht of ; ; be in active trustee ':%sadministering the : ' land;j;and.:thereafter. . • ho would>bo.a.bare trustee, just as if the;land had : always.-.;teen la.;: reserve ■%;. under, .the; provincialr.'statutci of : 1872. In this view the Act of 1883. would bo I useful' and sensible:enactment. . . : ' Mr. Skorrett as-"Puck."

',Mr...Justice, Coopet":.-.I (suppose' you Trill : 'shbw-.'later', where "you.come in? ■■'%■

-: Mr. Skerrett:. We (Auckland Hospital : Board)' hope; to 'come in in the igeneral ■ .MramWo.;'L'->.:. : ' ; ■■■.■:'>..•.■• '.--..■1-,'' : ;r T, Mr.■;.Justice^Cooper: I -suppose :the Board -wishes- to ■' urge its claim before.Parliament?: , ~ ; Mr. Skerrett: I am i' acting : rather like Puck, iyouf Honour; > (Laughter.) If. the matter, does gov beyond this Court,, then no doubt the '•'■ Auckland local; bodies will, seoj-jthb-,advisability of combining before goihg-to Parliament.. '■.The Chief Justice: 'It,would -\h'e.. a: very; strange, the. ■ Auckland; province should get a'jvaluable ':public' preserve, when other,provinces have not had ; ; the :,: same-treatment. ■■'.I\ have known the purposes of reserves changed many times by Parliament. '■:•' ■Mr. Reed explained .that it was- at : th«V instance of the Public Trustee that ihe l-Hospital Board had been joined in the case. "That is why we got them :in,'?::he remarked,. ''and I'm sorry we did." (Laughtor.)' •':.-. ■ Mr. Justice Cooper :;You don't want the-Education Board to get it. ' v"-. Mr. Skerrett: No,,and we should be very'sorry to see the Crown get it.

: Who Should Administer the Trust? ■■■'■"-The School Commissioners (counsel next'argued) were the body to admin-" istor-'thoi- trust at itho present, time; Formerly the School Commissioners had power to apportion .the benefits of such a-trust,'but that power had been taken from ".-them by.: repeal"of legislation in 1907. ■ He submitted, that .'the Court could hot help the commissioners, nor execute matter "cy pres," _beaiuse :this was a: statutory, trust given

to a statutory corporation, and it must bo'administered under the Act, or fresh legislation must bo obtained. It was for the School Commissioners to invoke the aid of Parliament. . '.' Education Board's Claim Denied. ; Summarising his contentions, Mr. Skerrett said that under tho Supremo Court Site Leasing Aet, f 1875, the ultimate, destination of the land • was a trust for; educational purposes in accordance .with the Provincial Education 1 Act, 1872.. Between 1875 and 1883 tho land '.became .. administrable by the SchobliCommissioners.under the Education Deserves Act, 1877, and it ; also, became'during the same period vested in the- School ■■ Commissioners,;either'by virtue of Section 25 of "the' Education Act, 1877; "or of Section 10 of tho Edu r cation Reserves' Act,. 1877. : The Act of 1883 breated a new trustee; but; did ,not: alter tho. character* of. the trust. ;It followed that the' Auckland Education Board ; had .ho right, title, or interest in the income from the land, and the Court must, so answer the question before; it,- 'If,.however, the Court did not accept l his-contentions,.'and if,the trub construction of the/Supreme Court-Site Leasing'-Act,' 1875," was'that the laud was/a'reserve to be'' administered :iu' termspf the' Provincial Education/Act, 1872,;:'courisel: would'adopt 'the agreement' of the Solicitor-Gorieral that, the board; botild 'hotvblaim; ■,;■" On-'that.' cbiistruction/it must be held -that-'.the reference "to'the Education r Act,'lß72, in the, Supreme Court/Site' Leasing" Act, merelyV indicated /the..general-purpose ; of : thV endowment,-" aiid not''the ■ machin'ery;'t6'De:iised:'';: :: '>. ; .;^r'a:-'•■;::' -. '..Mr.'M'Veagh, in'his argument) laid stress' on, the' contention; ( tliat- the en-, dowrheht ,; '6hould be'treated-as ah: education" reserve under- the Education Reserves Act,-' 1877.!'-In that'event' the Auckland' Education 'Board had nothing to do-with-;it, ? but: in any event' the land/ was' I 'hot .vested in' 1 the board and-■never-had been. -:■:••-':;-}'••/;;..v-.'- ■-'' :' ;::-

.Mr.:' Reed iharing''replied,-: the.-Court reserved its 'decision.""•;' ;:■:' ;.:,i.;.:-::"::.