INDENT AGENTS' BUSINESS.

Dominion, Volume 6, Issue 1801, 14 July 1913, Page 6

INDENT AGENTS' BUSINESS.

DECISION OF INTEREST. (By TolegraDh— Press AeßOolatiou.) Auckland, July 12. Tho judgmont of Mr. Justice Cooper in tho caso of Lewis Marks v. Richards. Ltd. (heard at the June sittings of tho Supremo Court) was read this morning by the Registrar. The action was a summons lo have not set asido tho service of writ upon Richards, Ltd., Q> firm not incorporated ill New Zealand under tho Companies Act, and tho action was ono that has an important bearing on business carried on by indent agents throughout the Dominion. Marks, Ltd., is a firm of spinners and linen manufacturers in Aberdeen, Scotland, and Johns'ton, Garnett, and Co., of Christchurch. who were joined as co-defendants, are indent agents who take orders for Eioliaixls, Ltd., on commission. Marks and Co. ordered canvas goods from Richards, Ltd., through Johnston, Garnett and Co., and, in consequence of tho non-delivery of the goods according to the oontract, issued a writ for damages. It was argued tho servioe of tho writ of summons on Johnson, Garnett, and Co. was not sufficient service upon Richards, Ltd. His Honour reviewed the ovitlenoe in which was stated for defendants that Johnson, Garnett, and Co. wero carrying on. business on their own behalf as indent agents, having their own ojfices mid paying their' own staff and routs; that they merely took orders on commission for Richards, Ltd. (among others), and, on those orders being accepted by tlio latter, arrangements for payment end delivery to the customor wero made by Richards, Ltd., direct with tho custom®. His Honour went on to say that, in order to provo effective servico of tho writ under Rulo 45 of the Companies Act code, the onus was upon Marks and Co. to show that Richards, Ltd., wore "carrying on business in Now Zealand" and, if so, that the writ had been served upon 6omeono appearing to bavo chargo of their business here. His Honour considered that tlio guiding principle in tlio ijiatter was that stated by Lord Justioe Romer in tho Duulop case: "That if. for a substantial period of time, a business was carried on by a foreign at a fixed place of business in this country through some person who there carried on tho corporation's business (and not merely his own independent business) then, for that period, the corporation must be considered a3 "rpsiilont" within tho jurisdiction and for the purpose of the service of the writ. Eaoh case, however, must depend upon its own facte and tlio onus of establishing that Richards, Ltd. is "resident" rests upon Marks and Co. In this case Marks and Co, would have to show much more than had been shown to establish that Richards, Ltd., were oarrying on business in Now Zealand. Plaintiff had failed to bring the company within Rulo 45 of tho code and the summons must bo allowed, and the servioe of writ claimed to have been effected under that rule upon Richards, Ltd., must bo set aside.