MOKAU ESTATE.

Dominion, Volume 4, Issue 1141, 31 May 1911, Page 8

MOKAU ESTATE.

MR. JONES'S CLAIM. THE LAND OR £100,000., REMARKABLE ALLEGATIONS. The long-continued and interesting litigation connected with the Mokau Estate was revived in (he Supreme Conrl yesterday, when the Chief Justice (Sir Robert Stout) and Mr. E. O. Jellicoe (counsel for Joshua Jones) expressed conflicting views as to the power of the Court to entertain an action in which Jones claims, inter alia, the restoration of the property to him, or in default J8100.,000 damages. The plaintiff, Joshua Jones, of Mokau, New Zealand, farmer, had filed a statement o-f claim, naming as defendants Sarah Jane Lefroy, of Notting Hill, London, wife of the Rev. W. H. Lefroy; \rchibald Bence Bonce-Jones, of London, barrister; Henry Kenip Welch, of Chelsea, London; and Sir Colin Campbell Scott-Moncrieff, of Chelsea, retired colonel, executors of the will of Wickham Flower, deceased; and Hermann Lewi?, of Wellington, ex-hotelkeeper. Statement of Claim. The statement of claim alleged that the late Wickham Flower, of London, solicitor, in the years 1893 and 1891, employed by the plaintiff and acting for the plaintiff, acquired in his own name the Mokan Estate, comprising upwards of 51i,000 acres, lor a term oi 56 years at. a rental of ,£l9l for the first 28 years and of J:3l>2 for the residue of such term, and became, entitled to an equitable lien thereon for ,£0152 and interest. The lands were of great value, and subjacent to them were the richest and most extensive coal beds in Aew Zealand.

In 1906, after Flower's death, the executors transferred, under the Land Transfer Acts, 1885 and 1902, (he said estate to the plaintiff, and he mortgaged it to them for .£17,500 alleged to be due to them as executors ot the vill. Tho plaintiff covenanted to.pay them at the office.of Flower and Flower, London, ,£17,500 on November 30, 1006, with interest at 5 per cent. The mortgage contained a condition that the mortgagees should not execute any power of sale until default in payment of some principal moneys for. six months after notice had been given. In November, 1906, the security was charged with a further sum of ,£SOO, and the executors agreed to extend the period for,repayment of the whole amount until May 30, "1907. Plaintiff endeavoured to tell the estate to Slessrs. Doyle and Wright, of Bishopsgate, London, who were acting for a propcsi'd .syndicate, but the mortgagees, with a view to preventing this and getting possession of the estate for themselves at a gross under value, disseminated (so he further alleged) the following statements: —"The Mokau Estate is the property of the executors of the late Wi'ckham Flower, Jones possesses m beneficial interest in it. The coal it contains is only lignite and worthless. It crumbles away on exposure to the atmosphere. Flower obtained a scientific report to that effect.".They succeeded; by this means, in preventing the sale, and also without giving the plain, tiff legal notice, and contrary to the terms of the mortgage, caused the estate to be put up for public auction by the Kegistrar of the Supreme Court at New Plymouth, and knocked down to them for ,£19,500, being the sum claimed by them to be due at that time under tho mortgage. At the dateof this sale there was pending iii the High Court of Justice Chancery Division an action brought by the plaintitf against the executors, in which lie claimed, amongst other things, redemption of the mortgaged premises with an account on the basis of wilful default. Mr. Justieo Parker expressed a doubt whether the action ought not to have been brought by the plaintiff in the Supremo Court of New Zealand, and the plaintiff therefore abandoned the action, and.proceeded to New Zealand to protect his interests.

in April, 1007, the plaintiff lodged a caveat forbidding the registration of any dealings with regard rto the said land without notice to him. Nevertheless, their attorney, Mr. James Palmer Campbell, of Wellington, solicitor, sold their interests in the estate to the defendant, Hermann Lewis, for £14,000, on June 10, 1908. This transfer, tho plaintiff alleged, was a bogus one, and no money actually passed, and the transaction was a breach of the executors' duty as mortgagees. On December 13, 1909, Lewis mortgaged his interest in the property to Thomas .George M'CaTthy for This was also stated to be a bogus transaction, procured by the executors. In February, 1910, Lewis mortgaged his interest in a portion of the estate to Findlay, Dalziell and Co., solicitors, for £1000. but (the plaintiff further alleged) no consideration passed to Lewis and no sum of ,£IOOO was owing by the latter to Findlay, Dalziell, and Co., and the parties to the mortgage had notice of plaintiff's rights and interests. These mortgages had been since January 1,1911, released to Lewis, and plaintiff asserted that they were only executed to operate against him and "to further the unjust and unconscionable schemes of tho defondants, or some of them," in defeating his rights and interests in' tho Mokau Estate.

■By reason of the above transactions, the value of the plaintiff's interest in the estate had been so diminished that he would never'be able to obtain anything like the true value thereof, and ever since July 27, ISOG, he had been deprived of the property and of the rents and profits derivable therefrom. The defendants other than Hermann Lewis had since that date wrongfully confirmed in the possession of parts: of the estate divers "persons who had not paid any adequate rent. The plaintiff, therefore, prays that the dealings of the executors.with the estate be inquired into, and that accounts be taken; also that, after payment by him of what shall be found duo under the . mortgages of IDOG, and deduction of anything found to be chargeable against the executors, the defendants be ordered to recouvoy the property to him, free of encumbrances, or in default to pay ,£IOO,OOO damages.

No answer (o the above statement of claim was filed, and the defendants were not represented in Court.

Proceedings in Court. Mr. .Tellicoe, in addressing the Court, Iraver.spd tho statement of claim, and mentioned that, although tho late Wickham Flower's dealings with tho Mokau properly had come under the cognisance of. the Courts in England and of this Court on many occasions prior to WOO, the present application only went back to Hint, year, whin tho previous litigation had come to an end, through the death of Flower, the transfer of the property to .Tones by the executors, and the mortgaging of the property to the execn'.ors by him. This mortgage was executed in England, and it required to be performed in England, so far as the mortgagor was concerned, liiit, while admitting thai, he would submit that it created a security, which was enforceable in New Zealand only, under the provisions of the' Land Transfer Act.

When counsel repeated the allegation that the sale to Lewis was "bogus and fraudulent,"

The Chief Justice said: "You can't attack that now. They got a title under the Act, which is indefeasible."

Counsel, proceeding, said that all (ho deeds and documents relating to the sale of the property to the executors bv auction, and to subsequent transactions, were executed in this country in order to create interests antagonistic to thqsa of the plaintiff, and he would say that all those transactions were bogus and fraudulent.

Ilis Honour: Hut they got good titles from (he Ke'istrnr.

Mr. .Tellicoe: It was all done to defeat the interest' of the plaintiff. He added that on the facts, as alleged, (he plaintiff asked for redemption of thn property, but if the mortgagees were unable to retransfer the properly to the plaintiff, ho thought (he arm of that Court was long enough and strong enough His Tlonnnr: The Privy Council thought otherwise in 1 lip .Maori land eases al Gisbomo.

Mr. .Tellicoe: I am content, lo try its strength. His Honour said that, if the plaintiff could not suceed as lo redemption, the question would arise whether the Court had jurisdiction as to a contract made in Enzlaiid and broken ia Enxrland,

Mr. Jcllicoe said some of the breaches had occurred in New Zealand.

What the Full Court Held. His Honour :-w\ the Full Court (Mr. Justice, William:-, Mr. Juslice Edwards, .Mr. Justice Co.iper, Mr. Justice Chapman, and himself) had held that the falo by tho Registrar at New Plymouth was .a proper one, and Unit Jones was barred from suing for redemption; As his Honour was hound by that judgment, it followed that all (hat was left for . tlie plaintiff was to sue for breach of a contract made in England. - Mr. Jellicoe: The plaintifl lodged a caveat, under tho Land Transfer Act, ngoinst the sale, and he was c.-lled on a to show cause why the caveat should not bo set aside. it was sd aside by the Court, although it might involve a claim for redemption. ' His Honour: The Couvt dismissed the action n? frivolous. The affidavits were before the Court. They may have been wrong, but. there was a right of appeal to the Privy Council. Mr. Jellicoe submitted "in 1 : he Was entitled to claim a remedy in the Supreme Court for a breach in New Zealand of a contract made in England. This referred to the acts of the mortgagees through their duly constituted- attorney in New Zealand. The claim for redemntiou or for damages in lieu of redemption was another mattor. His Honour said that if the contract was made in England nud broken in England, there could not be another breach in this country. Mr. Jellicoe said the last time the matter was before the Courts in Enelond, the learned Judge in Chancery seemed to think, that the only Courts that could deal with it were the Courts of New Zealand. His Honour: I think he was wrong, and the Supreme. Court has said so. Mr. Jellicoe: I only ask your Honour •to give us such a judgment as will enable us to say—if we co to the Courts in England again—that wo have exhausted fhe jurisdiction of the Courts in New Zealand. His Honour said he would endeavour to deliver judgment on Thursday morning.