LAW REPORTS.

Dominion, Volume 4, Issue 972, 12 November 1910, Page 14

LAW REPORTS.

SUPREME COURT. THE ABSENTEE LAND TAX CASE. ' . JUDGMENT RESERVED. The hearing of argument in tho case concerning land tax on absentees, which was commenced on Thursday afternoon, was resumed in the Supremo Court yesterday morning. Mr. Justice Cooper was on tho bench. Tho case was an originating summons, the trustees in the estate, of Mr. H. Levin, deceased, versus the Commissioner of Taxes, for a declaratory order in interpretation of Sub-section 3 of Section 54 of the Land' and Income Assessment Act, 1908, and to define the method whereby the second of the two assessments directed in the Sub-section should be made, particularly directing whether the deduction mentioned in Sub-section 4, of Section 59, should be mado on the said assessment. Mr. ■W. H. D. Bell appeared for the plaintiff, and Mr. H. H. Ostler for the defendant.

On Thursday, Mr. Bell stated that there were four beneficiaries. Two of the beneficiaries were absentees, neither of whom owned any land other than their shares of the property. The commissioner had charged absentee tax at 5 per cent, of the graduated tax. They submitted that according to tho proper interpretation of the. section nothing was, in this case, payable for absentee taxes. Tho commissioner had estimated the tax to be £28 2s. 2d. on £23,984, which latter amount was one-fourth of the amount bequeathed. Mr. .Bell had contended that while there' must be 'an assessment for a tax upon the absentees, and the assessment would be £28 2s. 2d., a further clause provided for a reduction which in this instance would wipe out the amount of the assessment. Mr. Ostler, who had commenced his argument before the adjournment, contended that Section 54 distinctly imposed the liability and that thero was no provision entitling the absentees to a deduction.

When tho caso was k resumed yesterday fnorning, Mr. Ostler said that Section 59 of; tho Land and Income Assessment Act of 1908 was the only section which, dealt with joint assessment, and' when itv was ' said ■ that a person- must be jointly assessed, tho whole of the porcedure was invoked, that was to; say, that the person must first be assessed jointly and then separately, "and then he was entitled to deduction. Mr. Bell's argument would lead.to the absurd.positiori. that; a legislature which' intended 'to - tax' absentees'; would be putting.the tax on with one hand, and taking it off with the other.

His Honour remarked that it had struck him' during the argument , that while tha onus was upon the Crown in the first instance'to-show that the absentees were liable to pay the tax, if the absentees sought to escape tho tax through'- a construction • placed 011 another section," the onus' was upon the taxpayer. Mr. Bell: Does your Honour rule that? ... . His Honour: Oh, no; but I am not sure' .that-it .'is not the case. Mr.. Bell. said that, Mr. . Ostler had relied on the' separate assessment, and tho use; of . the word "liable." - Mr. Ostler had said. that because of the use of the word liable ho one could escape tho tax. Mr. Bell 'held that to say a person "shall be assessed and liable" was the ordinary working; even in Section 59, where provision was made for a' reduction, those words were used. Mr. Ostler: I have altered my argument I .since then, so,I don't.thing that matters .much. Proceeding, Mr. Bell suggested that the intention of the Legislature was that a person, was to be penalised for being an' absentee only when tho separate,- assessment in; ;.Sec.tion 59 . was arrived'at/ He, traversed_"-Mri Ostler's argument-as to' the' assessments, and contended .that the methods'.of assessing were fallacious. His Honour: It struck me yesterday that , one of tho weak points of your very excellent' argument was that' you relied upon one assessment,.

Mr. Bell said that ho would deal with that, point-'.later... Towards the conclusion of the hear-1 ing, his Honour observed, addressing Mr. Bell: "There is the very plain intention of the Legislature that tho t-ibsoateo shall .be ihaxstl. You say that- owing to a confusion of terms they have let the absentee off."' Mr. Bell: That by a confusion of terms; but by a carelessness of actual provision; they incorporated a section without seeing. what its actual effect would bo." At the' conclusion of the argument his Honour said that lie - would give his judgment in writing.' The section was firetty difficult to construe, and he would endeavour to deliver the judgment in as clear language as possible.

THE MASTERTON ARREST CASE.

• ' APPEAL UPHELD. Judgment was given by Mr. Justice Cooper in the case Gordon v. Buttery, which was an' appeal from a judgment of the District Judge (Mr. W. R. Haselden) in an action tried by him and a jury at Masterton on May-.27, 1909, in which Buttery'was plaintiff and Gordon defendant.

The action, heard by Mr. Haselden, was for wrongful arrest; and was founded upon the following circumstances :— On March 31, 1909,' the respondent (Buttery) was indebted to the appellant (Gordon) for the sum of £5 os. 7d. On that date Gordon applied for a writ of arrest against Buttery, stating that there was cause to. helieve that he (Buttery) was about to depart for South Africa and evade paying the debt of £5 os. 7d. The magistrate was absent from Masterton, and the writ was granted, by a justice of the peace. Buttery took an action in tho District Court to obtain '£200 damages from Gordon for alleged wrongful arrest., Ho alleged in his statement of claim that Gordon had 110 grounds for believing that he was about ti ltnvo New Zealand with intent to.evade payment of tho debt. Issues were puc to the jury by tho District- Judge, and tho jury found that Buttery was entitled, to £50 damages. Yesterday the judge rultd that the appeal must be allowed. The judgment of the District Court was . therefore set asido and judgment of ionsuit entered nuno pro tuno with_ costs as per scale in force in the District Court at tho iimo the action was heard. The appellant is to have costs of appeal. : •'

BRANDING BUTTER BOXES.

AN APPEAL DISMISSED. 1 Mr. Justice Chapman delivered judgmen in the case Ellis arid Burnand, Ltd., Ify'S/AU , (appellants), versus iNorman Gib'bs, liquidator of the Palmer Engineering Company, Ltd., Wellington (respondents). The case. was heard on October 31. The appellants in January, 1908, ordered from the Palmer Engineering Company a machine for printing brands on butter boxes, to be like'one which they had previously obtained from the same firm. The machine which was supplied, however, had a larger cylinder than the previous one, and therefore the brands, which were plates of brass to fit on the cylinder,' could not bo used with it, and fresh brands had to be made by the appellants. The invoice price of tho machine, which was obtained by the Palmer Compttrty from an English firm, was £121 14s. Tho appellants paid half that amount, leav-

ing £60 17s. in dispute. They were sued, and they then counter-claimed for the samo amount for damage and broach of warranty. The magistrate (Mr. Hascldou, S.M.) gave judgment for the plaintiff on tho claim for £60 17s. and'costs, and for defendants on the counter-claim for £19 10s. and costs. Tho defendants then appealed to tho Supreme Court. The appeal was dismissed, with £8 Bs. costs.

PAPERS NOT IN HAND IN TIME.

A CONTRACT CLAIM. The claim of John o<Donnell against the Pohangina County Council for £230 Ss. lid., alleged to bo balance duo on a contract, was to liavo been proceeded with. His Hdnour was prepared to go on, and counsel were present, but owing to some papers not having come to hand the case was adjourned till this morning at 10 o'clock. "PECULIAR TRANSACTIONS." DEALINGS IN SUBURBAN LAND. Air. Justice Chapman delivered judgment in a case in which Cyril William Tanner was appellant. Frances Jane Haro and Earnest-G. K. Hare respondents. The appeal was from a decision of Mr. W. It. Haselden, S.M. The appellant, who is a solicitor, and is also registered as a money lender, had advanced money upon a second mortgage of a property at Kelburne. The transactions disclosed wero described by his Honour as "certainly very peculiar." Inter alia,' the Judge said: A Mr. Somerville, a solicitor, had advanced £480 upon a third mortgage of the same and other property, and had sub-mortgaged his third mortgage to a Mrs. Butler for £250. Appellant, for some default, sold the property through the, Registrar, and bought it in (subject to the first mortgage of £850) for £200, which represented his original advance, accrued interest, and charges.. This cut Somerville out. He was engaged in speculation, and it did not suit him to be able to show Mrs. Butler no security for her money. Ho accordingly entered into negotiations with appellant, Tanner, to regain an interest in the- property. The'transaction info which the parties entered was, upon the face of it, this: Appellant Tanner sold the property to Somerville, Mrs. Hare, and young Hare, for £200, subject to the first mortgage. He- advanced a further sum of £100, and got, by way of security, a sub-mortgage of a second, mortgage for £1200 of .property at Island Bay, held by the two respondents, .Mrs. Hare and her son. Tho mortgage.' tieats tin. advances as made'to the-two Hares and Somerville. By the torms of the mortgage, £100 became payable on April 30, 1010, and the balance on April 30, 1911. It is for the first instalment that this action, is brought. It is defended on various grounds, one being that, as appellant is a registered money lender, the transaction is void under The Money Lenders Act, 1908.' The appellant, in his evidence, denies that his business is that of a money lender. It appears, however, that since' the Act came into .operation —by which I -understand him to mean' The Money Lenders Act, of 1901—he has been registered, as a money lender, that he lends money s iu his own name in connection with his business. . . .

When a'man so describing his business is found. engaged, in a Typical money lending transaction, ho does riot discard tho reputation or the fact of his being a money lender by merely saying that his business is not that of amoney lender within the definition in tho statute. ... A ground of defence is that the transaction Was carried out in contravention of Section 4 of the Act in that it was business carried .on by the appellant elsewhere than at his registered address. . . . In tho result I do not find myself callcd;upon to decide anything more than the one question, and, in connection with that, I find: (1) That the appellant,is a money lender; and (2) that he. transacted the actual business ' elsewhere than at' his registered address. . In this view, as tho agreement is in contravention of a penal statute, the sum sued for and instalment of the wholo'sum stated,in the mortgage cannot bo recovered. I do not think it necessary or desirable to express any opinion as to whether appellant has any .remedy to recover the £100 advanced. ' Tho appeal is dismissed, with £10 10s. costs. n