CLAIM DISALLOWED

Dominion, Volume 27, Issue 68, 13 December 1933, Page 13

CLAIM DISALLOWED

Negligence by Lawyers - Alleged WOMAN’S CONTENTION Negligence by the legal firm representing her in an application for relief under the Mortgagors’ Relief Act was alleged in an action in the Supreme Court yesterday by Mr ®- M ?jJ® Josephine Searle. Her claim for £aoo damages was disallowed by Mr. tice Blair, who was on the bench. His Honour characterised the claim as absolutely baseless” and gave judgment for defendant firm. The claim was against cssrs ' Perry, Perry and Pope. -Irs. conducted her own case, and his Honour remarked several times during the hearing that much of her evidence was inadmissible by him owing to the race of its being irrelevant or of a hearsay nature. Mr. H. F. O’Leary appeared for the defendant firm. Plaintiff stated that in 1929 she purchased a house property for the sum of £1760. Later a mortgage was taken on it. by Mrs. Thorne George for £lOOO, and there was also a Government mortgage of £9OO. Through adverse circumstances she became unable to pay all the interest on these mortgages and the rates on the house. She vacated the property, and the legal representatives of Mrs. Thorne George received the payments of rent from the persons to whom it had been let. She was pressed and the property was about to be put up for sale. Plaintiff took steps to apply for relief under the Act, and approached the firm, of Perry, Perry and Pope, with regard to the action they took on her behalf she contended that they had disregarded an instruction from her to have her application heard before the Mortgagors’ Liabilities Adjustment Commission by taking it before the Magistrate’s Court, where it was dismissed then and also at a rehearing. She further alleged that she had unknowingly signed a fjilse affidavit drawn up for her by the firm. Applications Dismissed. She had not attended the first hearing of the application when it was dismissed in the Magistrate’s Court early this year, plaintiff’ stated, and she bad not known it was held there until afterward. She then directed the firm to apply for a rehearing, stating that a great error had been made and giving an instruction for the application to be taken this time to the Adjustment Commission. Shortly before the second case came on she was called away to Napier. When she returned she again found that the application had been dismissed in the Magistrate’s Court. Plaintiff then asked for the production in the Court of the affidavits she had sjgned connected with the applicati<7JS. , Compared with the one preceding it, the last affidavit seemed to be against her, in that it stated that she had no intention of bringing the case before the Adjustment Commission, she said. That was not a correct statement, and she had not known of it when she signed the paper in the office of Mr. Pope, of the defendant company, and in the presence of another witness. At the time she had not her spectacles with her, and before she signed the document she asked Mr. Pope to read it out to her. In reply Mr. Pope said it was just the same as the previous affidavit, which plaintiff did not know was not true. "The statement was quite wrong because I had been fighting all the time for my house and fighting to come before the commission,” she said. His Honour: This is a very serious allegation, you know. Are you sure of your contention?—-“Yes.” “Turned out of Home.” In reply to a question by Mr. O'Leary, Mrs. Searle stated that she quite realised that her contentions were quite contrary to what had been sworn to in the affidavit. She was disputing the affidavit and she would-, not have signed it if it had been read out to. her. She remarked that if the application had been made to the commission she would not have been “turned out of her home into the street.” A lot of the things plaintiff bad said were not evidence at all, said his Honour. One of the things she would have to prove was that if the application had gone before the commission it would have been received favourably. and after that; that the commission’s recommendation would have been acted on by a magistrate. Plaintiff was leaving many serious gaps in her case, and on some vital points was not attempting to get any admissible evidence. Mr. O’Leary submitted that plaintiff’s contentions were quite impossible of proof. William Perry, the senior partner of the defendant firm, gave evidence concerning his dealings with plaintiff. He had early advised her that her only chance of obtaining relief was first of all to let the house at a rent sufficient to cover the outgoings on it. This was done, and affidavits were prepared for her case. She had at no time specially instructed him to take the application before the commission. He considered his firm had done its best for plaintiff.

Russell Pope, the other member of the defendant firm concerned, denied that when he prepared the applications and affidavit for the second hearing he had told plaintiff that the document she signed was the same as the first. A Baseless Claim. Ills Honour: From your point of view was there any point in saying that she had not given the definite instructions about the commission?—“None at all. There was no special reason why the application should go to ttie commission.” “It is an absolutely baseless claim.” said his Honour iu summing up. Plaintiff's complaint against the defendant firm was in effect that the magistrate did not give her the case, and therefore she thought the firm should pay for it because of her instructions. About the instructions he. was not satisfied, and the onus had been on plaintiff to prove that, she had given them. Of course, it was possible she had been confusing the forms she had signed, and it was quite likely that she believed herself right in her own mind. But on her bare oath she asked the court to believe that a false affidavit had been prepared, and he did not feel inclined to do that. Judgment was given for the defendant company.