COURT OF APPEAL.

Dominion, Volume 5, Issue 1400, 28 March 1912, Page 3

COURT OF APPEAL.

THE DOCK. PITCAITHLY AND CO. V, J. M'LEAN AND SON. JUDG.UKNT RESERVED. The Court of Appeal continued its si I - tings in Wellington yesterday, when furMier argument was hoard in the case of Pitcaithly ami' Co. v. .Jolm M'Lean oml .Son. On the Pencil were .Mr. Justice Williams, Mr. Juslico Edwards, ami Mr. Justice Chapman. Particular* of tho case were published yesterday. In t!iu original action Pitcaithly and Co. claimed ,£20,000 as damages for alleged loss of profit. It had, however, lie-en agreed that, Iwforo hearing this case, certain questions of law should be settled by stating a special case for the Supreme Court—heard by the Chief Justice (Sir Robert Stout) in November last. In this ease the questions were answered in favour of M'Lean and Son, and judgment was subsequently entered ior them. Pitcaithly and Co. nun* appealed from tlio decision of the Chief Juslico on the ground that it was erroneous in point of law. Mr. Jl. D. Jieli, K.C., and Sir John l'indlay, K.C., with them U. S. Smith, appeared for tlio appellants (Pitcaithly and Co.), and Mr. C. ]i. Morison, witii him Mr. A. \\". lilair, for the respondents (John M'Lean ami Sou). Legal argument concluded at 2.30 p.m. yesterday. Decision was reserved. ROAD FORMATION. A COUNTY COUNCIL'S RESOLUTION. Sub-section 2 of Section 110 of the Public Works Act, 1908, as amended by the second schedule to the Public Works Amendment Act, 1910, was the main subject i'or consideration in the appeal case —District I,and Registrar v. Ijrightwell and Finlay—which came on for hearing yesterday afternoon before the Chief Justice (Sir Robert Stout), Jlr. Justice Williams, and Mr. Justice Denniston. Tiio matter lirst of all eaine before the Supreme Court in the form of an originating summons taken out by William Ueber Jiriglitwell, contractor, "of Majoribanks Street, Wellington, and John fleck Fin lay, agent, of Wellington, calling upon George Greviile JJridge.-, "District Land Registrar at Wellington, to substantiate and uphold tlio grounds of his refusal to accept plans as on deposit and to register dealings a fleeting certain lands ol the "Hall Estate," Pahiatna County. The proceedings were under the La ml Transfer Act, 1908, and the Pahiatua County Council defended the action.

l'roni the admitted facts stated in the Supreme Court, it appeared that Brightwell and l'inlay wero the owners of the Hall Estatij in the county of I'ahiatua. The estate was subdivided for sale, and roads were formed through it. On February 4, 1911, the County Council passed a resolution to the effect that the roads' had been formed satisfactorily. On May 31, 1,911, the chairman of the County Council gave the road contractor a written certificate to the ell'eet that the streets had been formed in accordance with the contract, and to the satisfaction of the council. At a later date that body called upon Brightwell and Finlay to metal the roads under the Public Works Amendment Act, 1911), and at the same time in-' strueted live District Land liegistrar to refuse to accept the, plans of the subdivision of Ihe estate as on deposit, or to register dealings alt'eeling the lands as the roads had not been constructed to the satisfaction of the County Council, lirightwell and Finlay denied their liability in regard to the metalling of the roads, and, relying on the council's resolution of February I, 1911, they brought the proceedings mentioned. The-l'ublic Works Amentimcnt Act, 1910 (by a schedule amendment), provides that the roads shall be formed, end, if required, metalled to the satislacuon of the County Council. Prior tl) this amendment county councils (with tlio exception of the Melwyn County Council) had lin power to demand that the reads should be metalled.

UnghtwcU and Finlay contended that the council had by the resolution of February •!, 1911 (passed after the 11U0 Act came into lorco), passed the plans with, out malting any requirement as to metalling; that no mention of metalling was made in tile council's ccrtilieate of May 31, 1911; that the council once having expressed its satisfaction as to the construction of the loads, could not, in point of law, reopen the question, but becarfie functus olHcio in the matter; that the Public Works Act does not require any particular form of approval by the council, and the resolution of February 1, 1911 (which was an act of the council), conclusively bound the council. ,

The l'ahiatus County Council denied that conrent had been given to the roads being dedicated without being metalled, and contended that the resolution of February -J, 11)11, was passed so 1 hat the for-

illation contract might be proceeded with; that the certificate given on Jlay 31, 1011, was -liven with the sole object of settling that llio formation contract had been completed and was carefully worded so that it could not be cons-trued to mean that the council's in connection with tlie roads had been coinpiisd with; and thai nothinjr had occurred which deprived the council of its statutory right to. insist upon Hid. roads being properly metalled and completed before being dedicutcd. i His Honour, in a reserved decision, held ' that the roads had been constructed to . th(! satisfaction of the Pahiatua County . Council. Bright'.vell and l'inlay were al- : lowed <£19 10s. costs, to be paid out of the i insurance fund, and the Registrar was al- . lowed JMa 155., to come from tha same ! i-'roai the drcision of Mr. Justice Chap- | man, the District Land Ilogiftrar at AVcl- : lingten now appealed on the grounds that . there was not at any time any election by the i'ahiatua County Council t'j waive the installing of the roads or streets, or to accept the"fonn-ition in satisfaciion of the rights of the local body on behalf of the ratepayers, and that the council did in fact renuire the roads or streets to be metalled. : Mr. C. H. Moris-on appeared for the appellant. and Mr. T. F. Martin for the respondent. ".After hearing Mr. Morisen. th» Court d-eided not to eal' upon Mr. .Martin. The Chief Justice, in the course of an oral decision, expressed (he opinion that the County Council, having once expressed satisfaction with the roads, had no power to come months afterwards and mabe further requisitions. In bis Honour's "pinion, the judgment of Ihe Court H-low was nrreet, and the appeal should therefore be dismissed. V>\ Justice Y>"iili:;'i]S and Mr. Justice Dniristnn agreed. Tf the council had desired that the roads should be metalled, the urapif time for that was ■'"a I'ebruan- I. iiill. The eIT-'ci of the, r-' solution of'that date was that the council had exhausted its powers under the Publie Works ; H of rcaoiring anything further to l e done to the roai!?. The anpeal was accordingly dismissed, uilli c"" ; ls on the lowest scale, tn he paid -Hit of l!i- assurance fund. Tha Court: lli-n aili'oirned until half-past 10 o'clock tili-. morning.