SUPREME COURT.

Dominion, Volume 4, Issue 1079, 18 March 1911, Page 14

SUPREME COURT.

A QUESTION OF JURISDICTION. MINERAL LEASES. 4> 'A ease of considerable interest to investors camo before the Chief Justice (Sir Robert Stout) vcstcrdav. The plaintiff was Robert Johnson, at present of Wellington, master mariner, and the defendants were Frederick John William Gascoync, of Hastings, commission agent, and Henry John Ferguson, of Napier, solicitor. The defendants are in possession of certain mineral leases now in their names under the Mining Act, 1908, in respect of certain lands in tho Karamea mining district, containing 1100 acres or thereabouts, and registered in tho Warden's Court at Westport. Tho Claim. The plaintiff claimed that these leases were held in trust for him by the defendants, and that ho was solely entitled to tho whole beneficial interest therein. The plaintiff had requested the defendants to assign tho leases to him, and tho defendants had refused, neglected, or failed to do so. As an additional and alternative cause of action, tho plaintiff said that in May, 1910, tho defendants undertook to assign the leases to him and to hand the deed of assignment and tho leases to W. A. Izard, solicitor, AYanganui, acting for a proposed developing company, to be held by him on behalf of tho defendants until payment of tho sum of £321 18s., alleged to bo rent paid and legal expenses incurred. Tho defendants had repudiated this undertaking. The sum of £321 18s. or any part thereof was not owing by tho plaintiff to tho defendants. Tho plaintiff subsequently offered to pay to the defendant under protest the sum of £321 18s. on their assigning the leases to him, but the defendants refused the offer, and claimed £1213 before they would assign tho leases, and the plaintiff had suffered loss and damage. For an additional cause of action the, plaintiff entrusted to the defendants certain forms of , agreement duly executed by him and purporting to agree to sell fully-paid-up vendors' shares iu a company to be formed for working tho mining properties mentioned.in tlio leases, and authorised tho defendants to arrange for tho disposition of shares and to fill-in the names of purchasers and other particulars, reccivo. purchase moneys, and account for samo to tho plaintiff. Tho defendant Gascoyne had accounted for one only of such agreement forms, in respect of a salo of 1500 shares to one H. B. Williams for £250, and tho defendants and each of them had refused to account for any of the other forms or for any other transactions in tho matter. The plaintiff, therefore, asked tho Court to order the defendants and each of them to oxecuto an assignment of tho leases to tho. plaintiff, or as ho should direct, and to hand over , tho leases, to him. Ho also, claimed £2500 damages in respect of tho refusal to assign the leases, and .ho asked for an order to tho defendants and each of therii to account to him in rcspcct of the agreement forms and transactions connected therewith. Tho Dsfsnco. The defendants, in their pleadings, denied that they held the leases in trust for tho plaintiff, and that they had refused to givo them up. They stated that in April, 1909, the plaintiff was adjudged bankrupt at Westport, and having not yet been discharged, was not entitled to hold property in his own right. .. Such ail agreement as that alleged by plaintiff to have been made in May, 1910, could not have been made by the defendant Ferguson without tho consent of tho other defendant, and ho refused his consent. The leases were held by the defendants for other parsons besides the plaintiff, and tho defendants, who had advanced £250 to help purchase tho leases (as was known to the plaintiff),\and it was necessary to liavo their interests'protected, and Ferguson required that this should be done, but no arrangement was mado by tho plaintiff for doing so. Tho plaintiff was never in a position to pay the £321 18s. Any proposal mado was only an offer from Ferguson and was withdrawn before it was.accepted, and, in fact, never was accepted. Any agreement between the defendant or either of them and the plaintiff was made without consideration and was not binding. It was part of an arrangement between the parties that before the leases could bo made over, for tho benefit of tlio plaintiff, the sum of £321 18s. should be paid to the defendants, hut such sum liad never been paid or tendered, and the defendants had paid since the date of the alleged agreement various sums of money neeessary to keep on foot tho said leases, which sums ought to have been paid by tho plaintiff, if anv assignment had been made as proposed, but tho plaintiff had neglected and refused to pay it. Finally, the defendants a legod that no loss had accrued to tho plaintiff through defendants not assigning the leases to him. ° Mr. T. M. Wilford appeared for tho plaintiff, and tho Hon. T. W. Hislop for tho defendants. In Which Court? The merits of the ease were not gone into yesterday, as a preliminary question of jurisdiction was raised. Mr. Hislop submitted that tho Supremo Court had no jurisdiction to hear tho case, it being within the jurisdiction of the Warden's Court. Mr. Wilford said tho matter did not nomo within tho oxclusivo jurisdiction of tho ! Warden's Court, which could not give the remedy for which tho plaintiff was asking. Ho urged that clearly the defendants had no right to move tlio latter part of tho cjaim into tho Warden s Court, and, in any ease, the point arose as to whether they 'had a right to sever tho action jnd le'avo only part before the Supreme Court. Such a course would render the plaintiff almost impotent in either part. Tho case was very important to tho plaintiff, who was practically without means, his whole future being dependent upon how he stood in relation to what lie believed to he a very valuable property. His Honour reserved his decision, and advised tho parties to try to como to some settlement, and thus avoid litigation which would probably bo expensive. BUILDING CONTRACT DISPUTE. JUDGMENT GIVEN. The Chief Justice (Sir Robert Stout) gayo judgment yesterday in two cases, which were heard jointly, and which arose out of the claims of certain subcontractors concerned in the erection of a couple of houses at Hataitai. In February, 1910, William Heber Briglitwoll let a contract to George Johann and V. J. Jorgensen for tho erection of two dwellingliouses in Matai lload, Hataitai, for the sum of £1167. After doing tho greater part of the work, and receiving certain progress payments, Johann and Jorgensen, in Juno of the same year, abandoned their contract. Brightwell's architect, H. T. Johns then wrote to tho subcontractors, suggesting that they should stand in the contractors shoes and complete tho work. Most of them fell in with the proposal, and accepted a tender to finish tho job for £76. After this arrangement had been carried out, disputes arose as to the moneys duo to the sub-contractors out of the balance of the sum named jn tho original contract. The disputes were put into the

form of two civil cases, which were brought into tho .Supreme Court, and heard jointly. In one case four of the sub-contractors who had joined iu the arrangement referred to above, namely, Kassou, Limited, timber merchants. Charles W. Martin, plumber, William Nicol, painter, and William Benson, bricklayer (all represented by the lion. T. W. Hislop), claimed from tho owner of tlio property £619 4s. and interest. In the other case, the firm of M'Leod, Weir, and Hopkirk, limber merchants (who were not a pariy to the arrangement for completing, the job), sued tho samo defendant for £125, balance of their account for timber and materials. These plaintiffs were represented by Mr. A. L. Herdman.

Tho defendant, William Heber Brightwell (represented by Mr. A. W. Blair) expressed his readiness to pay.the balance of tho contract moneys to whomsoever it was due. He calculated the amount to bo £424 12s. 7d., and he handed that sum into Court in respect of both actions. He averred that there had been an understanding that M'Leod, Weir, and Hopkirk's account should be paid by the sub-contractors who undertook to complete the work. His Honour, in his judgment, observed that there was 110 agreement in writing between the plaintiffs in the first action and the defendant. The agreement, therefore, must bo spelled out from the letters and tho conversations that took placc between the architect and the plaintiffs. Tho view 110 took was that the plaintiffs undertook the work, and that they were to bo paid for the labour and materials they supplied in finishing tho work, and that any sum .after that was to bo hold 011 behalf of all tho creditors, whose debts, if the amount was not I sufficient to pay them ill full, would havo to -bo paid pro rata, but if their debts were paid in full and there was any balance over, that balanco was to go to Johann and Jorgenson. Turning to another aspect of the case, his Honour expressed tho opinion that Brightwell could not say that he had a right to pay some creditors after tho said contract without reference to tho sub-contractors. Ho had, however, paid Briscoe and Co., E. W. Mills and Co., and there was also an expenditure by him for timber which 110 purchased from L. E. Christie and Co. 111 his Honour's opinion these items camo under tlio head of debts due by Johann and Jorgenson, and as.lie now stood in their creditors' position by payment, he would only bo entitled to bo repaid this amount as if he was a creditor. If there was not sufficient to repay this then 110 must only get payment pro rata aloiig with tho other creditors. His Honour ■ dealt'ivitli several constituent items of tho claims, and referred others to the Registrar, after whoso investigation formal judgment would be entered and costs fixed. .In'the second action, his Honour held that .there was a good assignment to. M'Leod, AVoir, and Hopkirk up to £400 bv Johann and Jorgenson. Tlio plaintiffs seemed to have supplied, goods to tho value of £301135. lid., and havo received payment of £100. They consented to the payment ; of £100 to Johann and Jorgenson, and they claim that £12-5 was paid to Johann and Jorgenson to which they did not assent, and that, therefore, they have a right to recover this amount from Brightwell. His Honour.was of opinion that plaintiffs led defendant to believe that they did not object to tho payment of £100 out of the £125 to Johann and Jorgenson. They could, therefore, recover only £25. So far as that sum was concerned, Brightwell would havo tho right to claim tlio £25 as a debt duo by tho sub-contractors to him, and to como in as a creditor for that amount. The balanco due to M'Leod, AYeir, and Hopkirk they would have a right to claim out of the sum payable to creditors. Ho fixed the costs at 7 guineas, with witnesses' expenses and disbursements.. OKAHUKURA NATIVE BLOCK. REHEARING REFUSED. The Chief Justice delivered yesterday tho judgment of himself and Mr. Justice Cooper in the Native land case relating to Ukahukuru Block, which was hoard by them on March l and (i. The case has a history going back to ISBG. The object of tho latest proceedings was to movo the Court to issue a mandamus restraining tho Chief Judge of the Native Land Court from ordering a rehearing of matters decided by the Appellate Court ill regard to tho apportionment of certain land among the Native claimants. The questions before tho Court went to tho jurisdiction of tiio Chief Judge, and in the event of his jurisdiction in the matter being affirmed, further questions as to tlio admissibility of evidence before him were asked. The plaintiffs were: Patena Kerehi and Keepa l'uataata, of Tokaanu, acting for themselves and other owners of that part of the Oknhukura Block known as Okahukuru, No. Bm, No. 2 The defendants were: Taitumu Marangataua, Kumcroa To Naku, Kino Marangataua, and 28 other Natives, acting for themselves and other owners of OUaliukura, No. 2, and Papakai, No. 2. His Honour, Mr. Jackson Palmer, Chief Judge of tho Native Land Court, was also joined as a defendant. 'I. 110 Okahukura Block comprises 82,700 acres and is in the Tauno district. Mr. M. Chapman, K.C.,with him Mr. S. A; Atkinson, appeared for tho plaintiffs, and Mr. H. D. Bell, K.C., with him Mr. T. AY. Lewis, of Hastings, for tho defendants. A special case was stated by consent of the parties, eight questions being put to the Court. Their Honours, in their judgment, stated that the answers to theso questions really depended on how one of them (No. 2) was answered. Following aro tho first three questions, with their Honours' answers:— (1) AVas tho investigation by the Appellate Court a proper aud complete investigation in respect of tho laud mentioned, and was tho order made by the Court proper and complete within the moaning of tho Act?—Ves. (2) Has the Chief Judge jurisdiction under Section 50 of the Native Land Act, 1009. to order a reheating of matters determined by the Native Appellate Court under Section 37 of the Maori Laud Claims Adjustment and Law Amendment Act, 1007? —No. . (3) Has ho such jurisdiction even if tho Appellate Court fails to mako a proper investigation?— No. > It was not necessary to decide the next three questions, which related to evidence. The reply to tho last question was that the application for a rebearing refused by the Chief Judge on the ground that lio had no jurisdiction to hear it.